Even its most ardent advocates now admit the constitution of 2015 is not working and the country is heading towards total anarchy. All three arms of government – the executive, the legislative parliament and the judiciary – are in shambles. To make matters worse, the feckless provincial governments too are seeing musical chair games and have no achievements to their credits except as milch cows for party cadres to draw perks and privileges.
An executive with practically absolute majority, expected to finally give the country a stable government for five years, collapsed midway and has been replaced by motley coalition that was not able to form a cabinet for three months. When it finally did so, it even dragged the judiciary into controversy with charges of nepotism against the chief justice, dragging the legal community into open warfare. Most constitutional bodies and embassies – in countries that matter most to Nepal – are headless, since the Deuba government withdrew previous appointments. Given that the ambassadors were vetted and unanimously approved through parliamentary hearings that included all parties therein, this action is proof that the current crop of leaders do not respect the constitution they drafted and imposed on the country in 2015. They did not do so to the 1990 constitution as well in 2006.
The parliament is dysfunctional. It has been misused as a rubber stamp of party honchos, called to pass budgets so they can receive perks and then immediately prorogued thereafter if the opposition started sounding too noisy. Into this degeneration, the Supreme Court has dragged itself as not a fair adjudicator but a political player as well seeking and succeeding in appointing its favourites as state functionaries. In the process, the skeletons of endemic corruption in its closets are being openly discussed, and its credibility is being reduced to mud. It is nakedly obvious now that political honchos of this dispensation have violated every norm of democracy and good governance one can envisage.
Assessing this desultory scenario, Swatantra Nagarik Samaj (Independent Civic Society, Pipalbot, Patan Dhoka) met on 12th November Friday to revive the Restore 1990 Constitution Campaign. It was started a decade and a half earlier by Nepali Kangress stalwart and its treasurer during the most difficult Panchayat days nonagenarian Ram Babu Prasain who passed away earlier this year. The movement included many who were opposed to the 12-point Delhi Deal of 2005 as well as Kangress and UML’s unholy portering of the murderous Noida Maoists political agenda: former Kathmandu mayor PL Singh, Bipin Koirala, Prakash Koirala, journalist Anar Singh Karki and others including yours truly. It is now spearheaded by younger democratic non-Left political activists as yet not widely known such as Sharda Shahi of Bardiya, Hem Bickram Silwal of Sindhupalchowk, Gajendra Aryal of Chhetri Samaj etc.
In a manifesto read out and accepted during that meeting, it laid out how the 1990 constitution was illegally and immorally sidelined, why its reinstatement is necessary, what are its imperfections that need to be rectified, and how might that come about.
It was in 2002 that the fratricidal infighting between Girija and Deuba factions led to the collapse of a majority-holding Kangress government which dissolved the parliament, promising (as per the constitution) to hold elections within six months, which it failed to do. It is reminiscent of today’s similar fratricide among the communists, leading many to ask if King Mahendra was right when he said party system governance is ill-suited to Nepal’s ethos. Under the 12-Point Delhi Deal of 2005, the King was forced to abandon plans for a fresh election and to revive that dead parliament whose voter-given 5-year mandate had long expired.
The Girija government formed under such murky circumstances, and which had sworn to uphold the 1990 constitution, seduced by promises of Noida Maoists and their foreign handlers to make him Nepal’s first president, proceeded to trample upon it. With more murky shenanigans, it shackled itself and the rights of Nepali citizens by a priori committing itself – and a future constituent assembly – to (borrowing former PM and Kangress president Krishna Prasad Bhattarai’s words) “imported agenda of republicanism, secularism and federalism”. Moreover, that agenda was tabled for voting in the first meeting of the constituent assembly by a person who had lost the election and was not even a member of the House. No discussions were allowed. What a shame! What crass illegitimate birth of this dispensation!
The Movement argues that a primary reason for the corruption and failure of the 2015 constitution is in its failure to ensure a referee institution (monarchy) above competing political parties to ensure they play by the rules. Not only has office of the president, mere nominated party hacks, failed to uphold its non-partisan adjudicator stance, it has also hidden behind the narrative (and behaved to prove) that it is only a powerless rubber stamp of the prime minister of the day. Why does the country have to bear the burden of upholding such a mere clerical functionary? This absence of a referee institution such as the monarchy has made ruling party honchos mini-autocrats (the Nepali word ‘nirankus’ or ‘without any restraint’ is more evocative).
The restoration of 1990 constitution would correct this major lacuna. It would also be a fitting tribute to the founding fathers of Nepal’s democracy who were instrumental in its design and promulgation: King Birendra, Ganesh Man Singh, Krishna Prasad Bhattarai, Man Mohan Adhikari, Sahana Pradhan, Madan Bhandari, and Nirmal Lama the Maoist Guru also a member of the 1990 Constitution drafting committee and others. Given that 2015 is totally dysfunctional, restoring 1990 would be the least disruptive of alternatives waiting just beyond the horizon, much less so than the rise of a Jung Bahadur via some form of military putsch.
Do these campaigners believe that 1990 is perfect, as was argued by its drafters such as former speaker Daman Nath Dhungana who then when on to trample on it without so much as proposing a single amendment? Far from it. They argue that certain features of the Westminster parliamentary model militate against proper democratic functioning and must be changed. First, by allowing a legislative representative MP to simultaneously become an executive minister, it violates the idea of “one person one office” principle of separation of powers. MPs should not be allowed to become ministers, and if they do, must resign from their seat to be followed by fresh elections for it.
Second, in its “first past the post” system, candidates who got less then 10% votes and thus forfeited their deposit were still elected members because they received the most votes compared to many others who stood for elections. It is a travesty that a candidate should represent 90% of the people who had rejected his candidacy! It should be replaced by the requirement to get at least 50% votes with a run-off among top two candidates if otherwise. The provision “none of the above” should be included in the ballot, and if it got the highest vote among all, fresh elections should be held with none of the candidates that stood previously being allowed to stand again as they were rejected by the voters.
Third, bodies such as the Constitutional or Judicial Councils should be abolished as they allow chief justice and parliamentary speaker to engage in – with attendant corruption – executive decision making, thus debilitating both the Supreme Court and the Parliament where such executive decisions cannot then be challenged. The same goes for the many Commissions that are mere salary granting outfits for party cadres. Fourth, if the US and Japan can rise to top levels of prosperity by having only ten ministries, Nepal too should merge and limit ministries to only ten (while devolving many of the functions kept at the center to local governance units), thus reducing administrative budget wastage significantly.
How is 1990 to be restored? The easiest would be if the parties that made it (and wrongly trampled upon it between 2005 and 2015) came to their senses and did so. That was the turning point into the current dead-end blind alley; and it is their responsibility to come back to the point where the mistake was made and take the country forward from thereon in the right direction. The current crop of top leaders in these parties are morally too weak to take such a bold decision. Perhaps a newer generation of untainted politicians can see the light and lead the country to its deserved peaceful and well-governed future.
If they fail, then it is up to the only untainted national institution – the Nepal Army keeping the King as its Supreme Commander – to do so by restoring a sovereign parliament envisaged by the 1990 Constitution through proper, free and fair elections within a year or two. Or else the country’s loot and free fall misery will continue.