Nepal's intelligentsia is too preoccupied with the challenges of the present. Like most societies in a similar predicament, we want to swiftly bury history and put off the future for as long as possible.
The lawyers at the Nepal Bar Association (NBA) and the honourable judges at the Supreme Court have minutely analysed the provisions of the interim constitution while it is being fine-tuned. The NBA says the proposed draft squeezes out an independent judiciary. The judges say they just don't want to have anything to do with politicians. But leaders of the seven-party alliance and the Maoists have decided to go ahead and promulgate the statute anyway on 15 January which also happens to be Maghi, the day when new kamaiyas are traditionally recruited by old masters.
When the interim constitution comes into force, politicians will no longer have to play that role with respect to the palace. But they will have to watch out for encroachment upon their turf by the old guard which still runs almost all estates of the realm. One reason the 1990 constitution collapsed was the non-cooperation of institutions of state steeped in traditional loyalty to royalty.
Despite the April Uprising, the mentality of some judges remains unchanged. A few royal nominees on the Bench have reservations about the mention of 'people power' in the supreme law of the land. That is to be expected. But we should discuss the comment of Shambhu Thapa, NBA president, member of the Interim Constitution Drafting Committee and civil society activist who fought on the frontlines against Gyanendra's autocratic rule. Thapa reportedly dismissed the proposed statute as a mere "political document".
All constitutions are political documents. They establish inviolable principles-fundamental freedoms, for example-and set the rules of the political game. Constitutional supremacy, rule of law, an independent judiciary, and human rights are often issues made sacrosanct, beyond the ambit of revisions by the executive or the legislative.
The proposed interim constitution has flaws. It does not prepare for a federal future. It does not guarantee proportional representation in the constituent assembly. A number of constituencies, madhesi, janajati, dalit, women, are justifiably dissatisfied with its unjust provisions, and their concerns will have to be addressed by the interim legislature. But to reject the proposed constitution as a mere political text is hypocrisy.
With the promulgation of the provisional statute and the formation of the interim legislature, the Maoists will have to learn that parliamentary democracies run as much by convention as by legal provisions. And those remnants of the discredited regime who still populate state institutions would do well to remember a hallowed principle of parliamentary supremacy: the doctrine of difference.
Sometimes called the doctrine of respect, this requires courts to recognise, 'that there are situations where the national legislature or the executive are better placed to make the difficult choices between competing considerations than the national courts'.
This is specially relevant when traders who hire leading lawyers are mostly royalists. Judges come from families that have worshipped the king for centuries. Senior bureaucrats have been trained and socialised to swear by the crown. The less said about the security forces the better. The media too has to go a long way to prove its loyalty to progressive politics and inclusive democracy.
The SPA-Maoist alliance deserves the benefit of the doubt to promulgate the provisional constitution they deem fit for the country.