CA's New Constitution in Nepal: 'Beggar’s Bowl'

l by Dirgha Raj Prasai

(November 11, Kathmandu, Sri Lanka Guardian) Nepal has remained an independent and sovereign country since the beginning of civilization. But Nepal's sovereign status has been suffering under constant conspiracy resulting from the disputes between India, China and America. 

Nepalese Prime Minister Jhalnath Khanal (L), ministers and lawmakers attend a parliament session in Kathmandu on May 28, 2011. Nepal's ruling parties held 11th-hour talks on Saturday to try to avert a fresh political crisis, ahead of the expiry of parliament's term. Nepal's parliament, or Constituent Assembly (CA), was elected on a two-year mandate to fulfil the terms of the peace agreement that followed the conflict and write a new constitution for the world's youngest republic. - Getty Images

India's major issue is to bring Nepal under its umbrella. If Nepal comes under the foreigners' design it will pose danger to China's internal security. Meanwhile, American interest is to support 'Free Tibet' campaign to disintegrate China. As per the internal situation in Nepal, the ideological differences between the political parties’ have given room for increasing foreign intervention and activities. In such a context, it will be our failure if we let foreign intervention go unchecked and get entangled in inter-party disputes. Those accountable for the retrogression of the nation are called traitors. The party leaders that reigned after 2006 have been involved in the deterioration of the nation. After 2006, through the Constituent Assembly (CA), Nepal’s existence has come under an impending danger. 'Constitutionalism' and legal ideology is a guideline for a civilized society. The parties that have held governance in successive years since the uprising have been remiss in giving due recognition to these two policies; as a result Nepal faces crisis. 

We Nepalese people can work together in the interest of Nepal and to implement any ideology, but in absence of foreigners' guideline. Whether its democracy, secular setup, federalism or any other system it is our subject not part of foreign design. Since 2006, due to foreign manipulation of the political party leaders, Nepal’s situation is deteriorating gravely day by day. Many foreign friends of Nepal who closely studied this country have expressed concern towards the negative situation in regards peace and security. Political parties have failed to respect the existence of the Nepalese people; they have proved incapable of adopting a common policy which has led to corruption and foreign intervention that are becoming major nuisances to Nepal. 

The controversial 'interim constitution' (the declaration of the three so-called big parties – Maoist, Congress and UML) drafted after 2006 has clearly stipulated before the election to the CA that the new constitution can be drafted in two years time span to avoid violating people’s mandate. It had also a provision for six months extension of deadline in case of emergency. However, the period of six months extension has already elapsed without a situation of emergency. The regime of the so-called big parties-Maoist, Congress, UML, randomly revived the dead parliament, in accordance to the 1990 Constitution. It is to be noted that the same parties had revived the parliament four years ago. After 10 months they dissolved the parliament and formulated the interim constitution without political consensus.

Now they have been extending the term of CA time and again and taking the allowance without shame; and such irresponsibility can in no way be supported.

The political traitors are converting the CA as a Beggar’s Bowl. The leaders have proven to be incapable of drafting the constitution in two years time frame. They have extended the deadline again and again against people’s mandate. In 27 May, 2009 the constitutionalism that ended technically was revived by an addition of one year extension of CA term by political parties. That one year was spent without any work being done. Again six months was added, and then a Supreme Court’s five-member special bench including the Chief Justice gave a verdict on 25 May, 2011 against the extension of CA term. 

However, on 29 May the verdict was disobeyed and CA term extended for three more months. During the ninth amendment of the CA, the day when Maoist leader Baburam Bhattarai became Prime Minister, there was no such provision as to extend the term of CA again. There had been a writ petition against extension of CA term, but the Supreme Court (SC) citing the ‘Doctrine of necessity’ gave its delayed verdict at 6 pm in favor of extension. The term will expire on 30 November. The SC’s ‘Doctrine of necessity’ is only for three months; and for once only. However, if that ‘Doctrine of necessity’ is time and again repeated on court’s backing then there will be no constitutional value in national and international community. The verdict of the SC was laden with defect and this 'Doctrine of necessity' was implemented in a constitutional crisis. There is a debate ongoing at the SC that the ‘Doctrine of necessity’ should not be repeated. The debate continues at SC that the extension is unconstitutional. 

The ‘Doctrine of necessity’ may once be implemented but cannot be so every time. In the developed countries of the world such a doctrine has never been tried. In the United States of America such policy has not been given any recognition. In 1954, the policy was practiced in a developing and unsuccessful nation as Pakistan. Sometimes, somewhere for once can constitutional values be disregarded or violated to implement such ideologies. 

We have to cogitate deeply– Will murder, terror, robbery and corruption stop in name of peace and constitution? Maoists killed more than 15,000 common Nepali citizens, military and police, and thousands kidnapped while many families had to be relocated. Some even flew abroad to save themselves during the decade-long Maoist conflict in Nepal. While the families of the deceased are still mourning; the families of the kidnapped and disappeared are still searching for their loved ones. Nepal now is governed by those who once were involved in the conflict. It is a serious question to the Maoists who are in the regime. Will impunity prevail forever in Nepal? Are there any other places where victims can go and appeal for justice?

This is already a misfortune for the nation – to talk of drafting a new constitution. There was no debate and discussion on the 1990 Constitution before holding the CA election, demanding a new constitution. There was no draft of the new constitution even on deadline. None of the parties are certain as to the structure of the constitution that would run the country in a certain definite way. It would be worthless to hope for a new constitution from this CA. Interim constitution was taken as an instrument of agreement. The agreement was broken after the CA election when Nepali Congress chose to become an opposition. With the discord manifested, when the agreement broke, the interim constitution became handicap. The interim constitution does not recognize multiparty system. The issues that have surfaced now are the result of the doubts then latent. The mistake has already been done. To correct it we must seek a different approach. What kind of constitution will be made? How can we move ahead? 

We must hold many discussions on how we can save Nepal’s prestige and identity. We must take the mandate of the people to make declaration in the interest of the nation. Why was CA election held when the declaration of secularism, republic and federalism carried out without the mandate of the people? The political leaders have done nothing. They have only drained the state coffer, killed citizens, disgraced the nation and started the process that dangers sovereign Nepal’s very existence. Those who have made CA a 'Beggar’s Bowl' and subsequently created anarchy in the nation are punishable. The rulers do not have any other concern than to talk eloquently before foreign powers to impress them so as to draw money and power. This dominating crisis has gradually built up after 2006 owning to the greed of political leaders.

The rulers and the leadership class that came after 2006 have become unsuccessful. Many are calling for new mandate, which is again deceitful. There will be no solution from this. There is a ‘doctrine of necessity’ in the world. There is also a ‘doctrine of eclipse’, which can be applied. The doctrine means that during 'eclipse', the old path – 1990 Constitution – should be followed. Now the interim constitution should seek alternative at such times of deadlock. The seven point understanding reached between the political parties has come under controversy. The seven point understanding is supposedly meant for peace and constitution. However, the issues of ethnic federalism, secularism and republic have proven to be an obstruction to the new constitution. Some call for fresh election for new mandate, but it is more likely to plunge the nation headlong into darkness.

There is no authority given in this constitution for declaring a new mandate. Let’s not make CA a 'Beggar’s bowl'! Let’s not keep the world in illusion through meaningless talks! Let’s not waist our time by blaming each other! We all live in this land. During work mistakes are not considered unusual. It is our national religion to realize mistakes. Pursuant to the ‘doctrine of eclipse’, we must revert back to the 1990 Constitution. We can form an all party cabinet. All the patriotic forces of the nation including the Nepal Army must join hands in hands to give the nation a right direction. We do not have any other alternative than to adopt a common beneficiary policy to reach a solution.