No Check, No Balance
A new interim constitution follows the communist model by barring the people who may oppose its preamble
By KESHAB POUDEL
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Leadership pose for photo after signing the statue : Significant gathering
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After the final agreement between seven parties alliance led by Nepali Congress leader Girija Prasad Koirala and CPN-Maoists to promulgate the new interim constitution, they finalized the statute on early morning of December 16, 2006.
Following the agreement to promulgate an interim constitution with 25 parts, 167 articles and 3 annexes, the 7+1 parties have created prime minister as another autocrat vested in him all the state power while stripping the King off all powers.
After marathon meetings of more than 15 hours on Friday and Saturday (15 and 16 December), when prime minister Girija Prasad Koirala, whose health was not in good condition, reportedly forced his communist allies, who opposed any presence of monarchy in constitution, to accept the earlier stand on monarchy as non-entity.
Whether one likes it or not, the particular date of Nepalese calendar Poush 1 that is December 16 has always been popularly condemned as a black day of history. Ironically, 7+1 political parties preferred the same date to put their signature on a draft of a constitution.
Some of the signatories of that document have declared it landmark achievement in the history of Nepal . On the same date 46 years ago, the King of that time deprived the parliament of all its power and dissolved it. After 46 years, members of revived parliament have deprived the King of all his constitutional power and claimed that they have put the King into the status of common citizen.
Both the events had the same effect on the rights of the people, fate of nation and mode of governance. The event of 1960 made King Autocrat and this has made a democrat dictatorial by concentrating all powers executive, judiciary and legislature into the discretion of prime minister. As senior advocate and eminent constitutional lawyer Kusum Shrestha questioned, “Whether we are heading to the dictatorship."
It is appropriate to remember here what the farsighted and conscientious statesman like B.P. Koirala had to say about the previous step of Poush 1. B.P in his recent book Raja, Rastriyata and Rajniti argues: “After that episode, not only did democracy cease to exist, the King, too, was weakened. Foreign forces were thereby provided the opportunity to become active in our politics."
”This step is definitely regressive, provocative and therefore counter productive to its own declaration," said the political analyst. “An Animal Farm of Orwellian description has a very appropriate expression on such a totalitarian system though all animals had participated in revolution. Soon after that it was declared from powerful animals that all are equal but some are more equal than others."
In the present Loktantrik democracy, all the citizens of the country are declared as sovereign but citizens of 7+1 are more sovereign that others.
Those who were opposed to the spirit of Janandolan would be disqualified from holding any political role in the new arrangement. "After promulgation of the interim constitution, opportunism and unprincipled political alliance have come to the full swing."
Like that episode, the King, the people and the entire nation is weakened by the new constitution. Though it consists of many articles making prime minister all powerful, it relies only on those who were nominated members.
Soon after the signing ceremony, Deshantar, a weekly vernacular which is said to be closer to Nepali Congress, mentioned the comment of prime minister Koirala that the King has been turned into Khopiko Deuta (a deity installed in wall).
Despite several agreements on the role and position of monarchy in interim constitution among SPA and Maoist, there were many disputes. It showed contradiction reflecting the unstable outlook of alliance.
"The interim constitution is a communist model but its supreme functionary is of a democratic background. This anomaly of the situation is for temporary purpose in accordance with the life of the constitution as interim. This has definitely same purpose to serve away from the knowledge of the people and against their wishes. Nepal has definitely contradictions within its own but the elements of external contradictions are at the peak of their operations and has proved to be in the top priority to accomplish,"
said a political analyst. "Dreadful or revolutionary postures have always been used as facets for dirty jobs to be done to achieve certain strategic gains."
Others, too, disagree with the method. "Political leaders who organized a mass uprising against monarchy with accusation that he violated the constitution, - soon after monarch conceded they threw away the constitution as a "squeezed lemon," observed an elderly and respected eminent constitutional lawyer with anguish.
Although makers of interim constitution claim that the interim constitution accepts all the ingredients of democracy, it incorporates certain articles which will bar political parties which hold the opposite views against the spirit of constitution.
There is a provision in the constitution which disqualifies for sharing the political power of the state. If a person has background of disassociating with the popular uprising led by SPA in the past, he or she should not be allowed to contest the elections of Constituent Assembly.
"It was a constitution based on political whip not based on constitutional whip," said Sambhu Thapa president of Nepal Bar Association and member of drafting committee. "The constitution has no provision of check and balance."
According to the constitution, prime minister is given all the powers from appointing chief justice to judges of the court and army chief. Interestingly, the constitution is silent on the head of the state. Prime minister can be made new version of Jung Bahadur as there are no checks and balances on his power.
Prime minister Koirala's nephew and close aide Dr. Shekhar Koirala had to say that the prime minister can accomplish the job of the head of the state and the head of the government in interim period only if he rises above partisan interest." Does he mean the constitution prefers party-less prime minister?
Under an article regarding political parties, the sub-clause 3 of the interim constitution says, "Those parties which hold views against main spirit of the preamble of constitution should not be eligible for registration.”
With so many contradictions, the interim constitution is facing first opposition from one of its signatories Nepal Sadbhavana Party (Anandidevi) which called Terai Bandha on December 24 opposing certain provisions of it.
