Overtaking The Constituent Assembly
Seven political parties formed the government promising the people that they would hold the elections for Constituent Assembly (CA) to decide major issues including the forms of government, nature of state, exercise of sovereign power, power of independent judiciary and many other such vital issues. However, what they have done in the last eighteen months so far have only helped to nullify the CA by deciding everything from bringing new interim constitution to announcing forms of government, role of judiciary, fate of monarchy and nature of state. If seven parties can take all the decisions, what is remaining there to hold the Constituent Assembly polls, which they are said to be considering holding by April, 2008?
By KESHAB POUDEL
"This is going to be the last amendment in the interim statue before the poll for Constituent Assembly," roared CPN-UML general secretary Madhav Kumar Nepal. "This amendment is for holding the elections for CA in April."
"By agreeing to declare the country as republic in the present constitution, the path for holding the election for Constituent Assembly by April has been cleared," declared CPN-Maoist leader Pushpa Kamal Dahal a.k.a Prachanda in Butwal.
Political leaders of seven parties spoke in similar language one and a half years ago when the King reinstated the dissolved the House of Representatives and handed over all his power to meet the demands of popular uprising Jana Andolan II. The mandate of popular uprising was to restore the House of Representatives, activate the Constitution of Kingdom of Nepal 1990, sign a peace agreement with Maoists and hold the elections for Constituent Assembly by November 2006. However, it was postponed three times in the past.
Following the recent disputes, the Seven Party Alliance (SPA) has come out with other agreements nullifying CA. The original commitment for CA was to respect the inherent right of the people for self governance. It was has an inner sentiment of the people under the cover of which major political parties reached to power by replacing the King as a syndicated authoritarian rulers of the country.
"The SPA leaders, no doubt, believe that all the people are equal but in practice they have established that they are more equal than others. Orwellian scenario of the Animal Farm has been tragic-comically translated into the real life of Nepal," said a political analyst.
Although leaders of seven party alliance always express verbally that CA is their final destination, they have been taking steps one after another to nullify the Constituent Assembly.
Process of Overriding CA
Soon after the reinstatement of House of Representatives and formation of government under the leadership of supreme leader of eight parties and Nepali Congress president Girija Prasad Koirala, the political situation started making strange turns. Instead of giving priority to holding the election for CA, eight party leaders made the very Constitution defunct, which they had paid allegiance to.
Under a 14-point proclamation of House of Representatives, the reinstated parliament made the Constitution of Kingdom of Nepal 1990 defunct. The proclamation even declared that any article of the Constitution of Kingdom of Nepal 1990 - which is against the clauses of proclamation – will be null and void. The House of Representatives proclamation of May 15, 2006 was the first step of fraudulence against the will of the people.
"Had we passed the CA bill first, the country would have seen the election a long time back. However, our aim was derailed by the proclamation from the parliament. I have not seen these kinds of situation in any democratic country where proclamation could declare the constitution non-functional," said Congress leader Govinda Raj Joshi. "I don't think we will have election any time soon."
After a political understanding with the King, the House of Representatives was reinstated, Jana Andolan was called off and the Prime minister went to the Royal Palace and took oath of allegiance of the constitution of that time but the oath was not respected even for a month.
On May 15, a serious violation of the constitution was abruptly made through the 14-points proclamation. The basic stricture of the constitution was demolished by that and the parliament was declared as the supreme power of the country. The role of the King was completely wiped out except his purse.
However, the first article of Constitution of 1990 said that the constitution is the fundamental law of Nepal and all laws inconsistent with it shall to the extent of such inconsistency, be void. But flagrant violation was made of this provision and the parliament declared any violation of this proclamation as null and void.
Violation of Constitutional Order
However, the proclamation was not the end of violation of constitutional order. The next phase of a serious violation was made through interim constitution. The text of this interim constitution was finalized by leaders of eight parties and approved by the parliament, which was reinstated by the King.
The interesting parts of this drama were that the HoR which approved the constitution was replaced by nominated members (with the same members of the previous house) forming another parliament peculiarly named as a legislative parliament.
Within a year of promulgation of constitution, two amendments have already been made and a third is going to be passed probably in the ongoing session.
"This interim constitution is for interim period and it cannot take major political and constitutional decision. The country needs a new constitution and for that early election is must," said former speaker and mediator of government Maoist talks Daman Dhungana. "The monarchy should be eliminated through the CA."
In the past one and a half year, leaders assured people all the time that the future shape of constitutional order shall be decided by the CA. They argued inside their parties and inside the parliament as well as in any available forum that the fate of monarchy will be decided by the CA. But, all the time since the restoration of previous parliament, the ruling alliance has been curtailing, one after another, the constitutional function of the King ignoring their commitment that the fate of the institution will be decided by the people. All these attempts have yet failed to provoke the King as well as the army.
Nepal's Reality
The past sixty years of experiences have shown that problem of Nepali is not making nor unmaking constitution or a form of government but it is something else related with Nepal's own geographical location. "Since 1947, Nepal has not been able to continue with any constitution or form of government. During this period many constitutions have already been changed and this interim constitution is the sixth in experiment," said the analyst. "The situation has always favored the ruling alliance; there is a chance that they would exercise all the power of the state in absolute term except its sovereign right to deal equally with all. The balance has too much tilted towards south which may at any time get a kick-back. Its geographical proximity is the main cause of unstable experiments of constitutions but the same proximity is its guarantee of survival too," said the analyst.
Nepal's geographical situation is its problems as well as guarantor for survival as an independent country. Other political leaders who hold the view that the constitution delivered by CA will last long and provide the political stability argue that Nepal's two neighbors are positive for election now. Chinese senior leaders recently in their visit stressed the need to have election and stability. Senior Nepali Congress leaders who returned from India recently found that Indians, too, are positive on election. "The election has become certainty now," said Nepali Congress leader Sujata Koirala.
However, others do not buy these arguments. A retired senior army officer having served for more than three decades in Royal Palace has seen nothing changing in the situation in favor of a stable Nepal. "We have seen what southern neighbor has been doing in Nepal for the last six decades. Looking at their past actions, I don't believe that one can see a favorable response from south to bring stability in Nepal," said the officer.
"If stability is a genuine agenda of the south, then why are efforts are being directed against Nepal's two stable institutions monarchy and army?" he asked. "I am not optimistic that they will hold the election in April, 2008."
Although leaders of seven parties express commitment to hold the elections for CA in next April, many argue why they would need the election now since almost all major decisions concerning the nature of sate, form of government have already been decided in fraudulent deals one after another. Even if the SPA holds the election, which is still a rare possibility, there will be nothing for the people to elect for because they have decided all the matters as per their desire. Then again, there is no guarantee that the next constitution will not face the fate similar to that of 1990 constitution.
