Both Rishikesh Shaha and Shambhu Prasad Gyawali (my father) have now passed into the pages of history, but they were giants that bestrode the Nepali public sphere for half a century. Both were architects of the 1962 Constitution that lasted 30 years despite being mangled, first by Panchayati hardliners in 1975 and subsequently by the myopia in 1980 after the National Referendum. A few months before my father passed away, I remember the two debating the 1990 Constitution, which had begun to exhibit fatal flaws.
They did not doubt that it had certain democratic features, but it also contained contradictions which led to the present mess in governance. It was biased against small and emerging parties, and it effectively failed to include heterogeneous minority groups. Provisions such as the judicial council removed the onus of proper administration of justice from the shoulders of the chief justice. Under a winner-takes-all scheme, real representation was wanting. And by blurring the distinction between law making and executive functions, check-and-balance failed in a systemic way.
But was the constituent assembly advocated by the Maoists the solution? Was it right for those believing in the rule of law to fall for what those who believe in consensus at gunpoint advocate? The gist of that exuberant debate was that if the parliament itself failed to initiate necessary reforms, it would inevitably be done from outside-either as a consensual reform process initiated by King Birendra or through the Maoist path of a constituent assembly. After having his fingers burnt in 1979 and 1990, the monarch seemed reluctant to pursue the first. Was the second option of wiping the slate clean and starting afresh even feasible?
The scenario could unfold as follows. At the very instance that a constituent assembly was declared, the 1990 Constitution would be null and void. Immediately the executive, legislative and judiciary powers of the kingdom would revert to the head of state. The constituent assembly would then be the process of bringing back those powers to public organisations and legitimating them. The difficulties inherent in that course of action, they felt, were not being seriously considered.
First, one had to decide what legitimate constituencies were. The 205 electoral districts would have already been annulled. How was one to fix new ones? On what basis? Population? Language? Ethnicity? Religion? Some or all of them? Who was to decide, and how? Second, elections would have to be held in each of those 'constituencies' because nominations would not do.
In this kingdom that consists only of minorities, would not all (Muslims, animists, every linguistic group and, heaven forbid, Brahmins) clamour for the same separate status? Third, after these practical hurdles are crossed, there would have to be a consensus about the framework of a new order, for which no one has proposed any serious blueprint.
If one has to go for elections, why suffer the impossible feat of electing an impractical constituent assembly? Why not elect a fresh parliament that already has the right to change the constitution with a two-third majority? There is nothing in the present constitution stopping it from adding provisions of ethnic or linguistic balance or even a referendum. Why don't the parties go to the people with that clear blueprint and get the requisite mandate?
Five years ago, when the elders debated this question, there was still hope that the parties could see the light and lead to reforms. Today, we have seen much more veniality, and the governance debate is far less edifying. Congenital kleptocrats have no business calling themselves democrats. Arsonists or extortionists are no progressive vanguard. Restoring them to power without them having to face voters is the real regression.
The way out of this quagmire is to begin the process of local elections that will throw up a newer set of young leaders. Let all parties answer the seven points raised by the king and let them go to the public with their view on the constitution, preferably after reforming themselves. Then let us see what mandate the public will give. That they cannot go to the people because of the Maoists is a lame excuse: the Maoists have only stepped into the political vacuum left in the countryside by the parties unable to explain their kleptomania. This interregnum will continue until the people can decide.