When push came to shove with conspiratorial dissolution of the parliament in May 2002, even king Gyanendra, the biggest beneficiary of the constitution—he could not have been legitimately crowned without its mandate—refused to honor letter and spirit of the supreme law of the land. A triangular settlement supposed to have been reached between the monarchy, parliamentary parties and communists in 1990, ultimately hemorrhaged to death with multiple cuts being inflicted by those who should have been defending it with all their might.
Theoretically, it is still possible to formulate one of the best constitutions in the world before 28 May 2011, the day extended mandate of the Constituent Assembly expires. If politics were taken out of debate, even legal eagles and experts would not be necessary. It should not be difficult to download an ideal constitution from the internet, change a few features here and there to make it look indigenous, translate the document in Nepali and declare pompously: “Look, here is another miracle!” It took five days in 1990; similar feat can be achieved in five hours.
Political miracles, however, are often tricks. The moment politics is removed, laws become commands of the powerful. In contemporary Nepal, no particular group possesses the moral authority and sufficient coercive power to have its commands obeyed. Entire CPN-UML line-up and nearly half of Nepali Congress disgraced themselves by becoming instruments of Gyanendra’s royal-military machine. Having surrendered to the people’s will for a peaceful resolution of violent conflict, Maoist combatants are downcast. The military has yet to recover from the humiliation of having been the blunt edge of Chairman Gyanendra’s dictatorial weapon. Fractured mandate of the electorate has made the process of give and take essential for the making of new constitution. In a way, that is a blessing in disguise: The more heatedly provisions of laws to be framed are contested; the higher will be its acceptability once the constitution is complete.
It is a difficult and distasteful choice. The drama at New Baneshwar sometimes gets unbearable. Alternatives, however, are so scary that CA members begin to look like Lord Shiva’s colorful marriage party: Abhorrent but necessary components of an important ritual.
Fundamental premisesSuccessful revolutions write their constitutions with bayonet of the gun. After the counter-revolution of 1960, King Mahendra did not need to convince anybody to adopt the Panchayat system. Constitutions of compromise, however, require that the advantaged groups in society give up some of their privileges while the excluded somewhat lower their aspirations, so that rules of the game for political contestations become as fair as practicable under the circumstances. Political give and take is messy by definition. It made Otto von Bismarck, Imperial Chancellor of the German Empire, utter in exasperation: “To retain respect for sausages and laws, one must not watch them in the making.”
There was no 24X7 media in the time of the Iron Chancellor and he could get away by telling people to avert their eyes from political shenanigans and wait for the judgment of history. Circumstances have since changed. Politicos of modern age are not answerable to only historians; they have to be accountable to couch potatoes who may not take the trouble to vote but consider it their divine right to pass judgment over every scene on the small screen beamed into their drawing rooms. Overseas Nepalis, with the portable rootedness of WiFi-empowered palmtops, seem to think that they know better what is good for the country they deserted than those who are struggling to make it better in their own ways. The politically significant constituency—those who man the barricades during confrontations, brave lathis and bullets rained upon protest marches and queue up to vote—too has begun to wish for wonders rather than demand plausible explanations from their representatives.
Front organizations of CPN-UML took out ‘civil society’ rallies last week asking that the constitution be promulgated within the stipulated timeframe. However, if such a thing were to happen, probably they would be the first ones to take to the streets demonstrating against either ‘regressive’ or ‘revolutionary’ provisions of the document. Peace process has several outstanding issues to be resolved, but a new constitution is not being framed for one simple reason: There is no societal consensus over its fundamental features. It would be pointless to promulgate a constitution in a hurry just for the sake of having a constitution by a certain date.
Fundamental premises of the new constitution have to be agreed upon outside the Constituent Assembly hall. It needs political not legal processes and unlike professional assignments, political tasks do not respect either a clock or a calendar. Perhaps it is getting late to realize that the Constituent Assembly cannot formulate an acceptable draft within its previously mandated period. The question then arises: What then? Consequences need to be openly debated without the fear of fallout.
The political vacuum
Should the Constituent Assembly refuse to extend its tenure once again, the legislature too would cease to exist from the midnight of May 28, 2011. President Ram Baran Yadav would then be obliged to recognize the caretaker status of coalition government under Premier Jhalnath Khanal. Such a government would have no mandate other than conducting fresh elections. However, the interim constitution has no provision for any such exercise. The CPN-UML-UCPN (Maoist) leadership could then pretend to hold public consultations for fresh political settlement and hold on to power for as long as internal contradictions of the coalition does not weaken it sufficiently enough to make military intervention in politics necessary. The Nepali Army may not harbor overt political ambitions, but its generals would find it extremely difficult to resist the clamor for taking up the responsibility of running the country in an emergency on a ‘temporary basis’ till normalcy returns. From there it is Burmese road to the guardianship of the army. It is difficult to imagine that Madheshis would relish such a prospect.
It is also possible that President Ram Baran Yadav is impressed upon by interested quarters that he is the best person to lead the country towards an expert tribunal, a democratic constitution and fresh elections. That road has been traveled before in Pakistan with disastrous results. Maoists may have become weak, but they would be forced to fight for their life if such a situation arises. The CPN-UML would then split, with some waving sickles behind the Red Flag, others going with the hammer into the rightist camp.
At least some members of the ‘civil society’—a ragtag band of failed politicians, successful entrepreneurs of the NGO-industry and self-righteous professionals—continue to be fascinated by political experiments tried in Dhaka. However, Bangladesh had a workable constitution to test the Moriarty Model with a military-backed caretaker government conducting elections. It would not be possible to repeat the feat in Nepal by resurrecting the discarded constitution of 1990—its unsavory baggage of unitary government under ‘constitutional’ monarchy is sure to frighten even diehard opponents of Maoism among janjatis, Madheshis, Dalits, Muslims, Christians and other traditionally marginalized groups of society.
There are practical difficulties of conducting any elections for quite a while anyway. Electoral rolls have to be renewed. The Election Commission has fully become a political arena; its competence currently is not much better than that of Gyanendra’s one that tried to conduct municipal polls with disastrous results. The police cannot even defend itself, who would provide security to polling booths? Constituent Assembly elections could be held peacefully for the simple reason that people wanted it to be successful. Such a consensus for fresh mandate appears highly unlikely anytime soon.
It is possible to ponder over several other scenarios, but the long and short of the whole discussion is that extension of the tenure of Constituent Assembly is still the most practicable of all options. Yes, periodic renewal of mandate is an indispensable part of any democratic regime. Nepal will have a democratic regime once a new constitution is adopted. Until then, the country is stuck with a transitional government that has to pretend to be democratic but has to function under a compromise document of an aborted revolution.
It is a difficult and distasteful choice. The drama at New Baneshwar sometimes gets unbearable. Alternatives, however, are so scary that CA members begin to look like Lord Shiva’s colorful marriage party: Abhorrent but necessary components of an important ritual. Purists of all varieties—democrats, militarists and Maoists—find a state of confusion frightening. The phrase war ki par (sink or swim) is a popular expression among a lot of Nepalis. Realities of life, however, are much more muddled.
Bertolt Brecht has a caustic comment for powerful people with little patience: “The Commissar of Information has said, That the people have betrayed the confidence/ That the Government had in them, / And now they have to work very hard to regain it/ Would not it be simpler, in that case, / To dissolve the people and elect another?" Perhaps ‘influential leaders’ who failed to gain the confidence of the electorate want just that. Their reasoned voice should be heard, but the holler for the scalp of CA needs to be ignored.