Unfair criticism

Just when things were starting to settle down after the devastating April 25 earthquake, the interim order issued by the single bench of Justice Girish Chandra Lal on June 19 against the implementation of the 16-point agreement on June 8 among the four major parties has stirred Nepali politics. Those hoping for quick promulgation of constitution as a result of the agreement among the parties whose numerical strength in the CA is more than 90 percent were shocked by the decision.

It was a well-known fact that CA-I failed due to lack of agreement on the knotty issue of state restructuring. The process in CA-II was also stalled for want of consensus on this issue. But according to the 16-point deal, "The Federal Democratic Republic will have eight provinces based on five criteria of identity and four criteria of capability"; "two-third majority of provincial assemblies will name the provinces."; and "Nepal government will form a federal commission to recommend on the demarcation of federal provinces." The commission will have a tenure of six months. The Legislature-Parliament will take a final decision on the demarcation with a two-third majority.Against these backdrops, we have to parse the Interim Constitution before making any further comments. Article138 (1) of the Interim Constitution states, "There shall be made progressive restructuring of the State with inclusive, democratic federal system of governance, by doing away with the centralized and unitary structure of the State so as to end discriminations based on class, caste, language, gender, culture, religion and region." Sub-clause (2) states, "There shall be a high level commission to make suggestions on the restructuring of the State. The composition, function, duty, power and terms of such commission shall be as determined by the Government of Nepal." Likewise, sub-clause (3) specifically states, "The final settlement on the matters relating to the restructuring of the State and the form of federal system of governance shall be as determined by the Constituent Assembly."

With these provisions of the Interim Constitution on one hand, and the agreement between the parties on the other, any reasonable person will conclude that some points of the 16-point deal contradict provisions of the Interim Constitution. Curiously, the learned Justice has not committed any mistake to be criticized by the political parties in general and the legal community alike. As a matter of fact, he has strengthened the sovereignty of the CA which was being hijacked by the leaders for the sake of power time and again. Regretfully, the legal luminaries, too, could not rise above their political leaning.

The critics seem not to want a constitution through an elected CA representing various shades of opinions and aspirations. The deal had taken constitution-writing away from the parliament to a limited number of people with limited aspirations. Moreover, many people could never reconcile themselves with the idea of federalism and especially the idea of creation of a distinct Madhesh greatly troubled them.

It is a fact that Nepali Congress gave up the idea of CA in 1959 when it decided to go for parliamentary elections and accepted the constitution of 1959. CPN-UML had hardly ever raised this issue. Even though the Maoists incorporated the CA in its charter of demands submitted to the government in 1996 before waging its war against the state, the CA was made the middle ground for the subsequent 12-point agreement in 2005. Maoists were always for autonomous and reserved provinces for the deprived and marginalized communities where they were in majority. The party was not in favor of a Madhesh Pradesh: one, two or many. Perhaps this was the reason, that NC, UML and the Maoists came together to deprive the sovereign CA-I of its birthright a natural death after adopting a constitution.

Interestingly, the SC interim order can be challenged and its legal remedy found. It is purely a constitutional matter; not a political one. Any constitution is commonly regarded as an article of faith for the people, but it is often made an article of convenience of some leaders with vested in Nepal. Justice Lal's order has indeed succeeded in bringing cats out of the bag. His judgment does not reflect his Madheshi identity. It was only a coincidence that the justice and the petitioners happened to be Madheshis.

Since the issue of federalism with Madhesh Pradesh was incorporated in the Interim Constitution only after the Madhesh uprising, Madheshi leaders are morally bound to this cause. All justice loving people should appreciate the judicial discretion of Justice Lal.

The author is a former Election Commissioner
mishra_bp@yahoo.com

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