Nepali Times
Constitution contention


Those who expected the country's first legislative session sitting under a state of emergency to go into hibernation after the ratification roll call are fighting off their own sleep. The political atmosphere has been so electrified by clandestine pacts and public commitments flying left, right and centre that even a momentary loss of concentration could leave you far behind on current affairs. The main opposition CPN-UML's eight-point constitution-amendment proposal has animated discussions both in terms of sound and substance. With key comrades still jumping off their seats to cordon off the rostrum and firing off incendiary threats, we may rest assured that democracy is alive and kicking. (How that ward chairman from Taplejung who sauntered into the opposition benches could breach such tight security is probably under investigation. But he and his illusory lapel pin provided reaffirmation during these parlous times that parliament still remains in the public domain.)

The UML could be so definite about the articles it wants changed primarily because of the critical support it bestowed on a document drafted by a panel that included two of its senior leaders. In raising some questions and answering others, the party has given us a refresher course in civics at a time when our civil rights stand suspended.

On the question of amending the constitution, the UML is firmly against outsiders stepping on the toes of honourable legislators even if they happened to head or serve on the panel that drew up the draft. The newly reunified party is in such resounding unanimity on this matter that the tone of its deliberations has shot up several decibels. You might argue that raw ideology is at play here since all the non-communist representatives that were on the drafting panel are almost uniformly arrayed against an amendment. But here's the basic flaw in that contention: none of them is an MP.

On the face of it, the UML has good reason to be outraged by the outpouring in favour of the status quo. How could the emergency stand in the way of amending the basic law when it hasn't stopped some people from demanding a constituent assembly? Moreover, the comrades and fellow travellers in the other parties have 61.9 percent of the people on their side (Nepali Times/ weekly Internet poll #24). You have to delve deeper, however, to fathom the finer points. Given the composition of parliament today, an amendment represents a clear and present danger, while a constituent assembly is merely something in the realm of possibility. The case could be made that the assembly plea, therefore, enjoys greater free-speech protection than the amendment proposal, although these are not normal times. As for the majority of Nepalis in the poll who believe the constitution needs "tinkering", you have to acknowledge that the term covers everything between deleting the "let the people proliferate" phrase from the national anthem to a surgical overhaul of everything except the four unchangeable features.

That brings us to the crown of the debate. Do we need the palace's approval to alter a document that stands on the tripartite compromise of April 1990? The constitution was promulgated when the palace technically still wielded supreme powers. Once it became the basic law of the land, the people gained the right to exercise sovereignty through parliament. And Article 44 of the constitution describes parliament as consisting of His Majesty and the two chambers. The UML and the Nepali Congress may get the two-thirds majority by whipping their MPs and the people may feel constrained to observe the silence mandated by the emergency. But we have to take cognisance of precedent. The ill-fated citizenship amendment bill has shown how the palace and the Supreme Court can step in to give the people a voice repressed in the two chambers.

The national consensus on amending the constitution remains, at best, a notion. The Nepali Congress is divided along the lines of camp loyalty, the Rastriya Prajatantra Party wants elections based on proportional representation and Nepal Sadbhavana Party has a list of its own geographically concentrated grievances. How are we to reconcile these different versions of the amendment entreaty?

To be sure, the Bhadra 12, 2052 Supreme Court decision reinstating parliament went against the UML and our comrades have been waiting through split and synthesis for their chance to spell out the prime minister's prerogatives in the constitution. But it's important to remember that the court verdict went in favour of the Nepali Congress (specifically, the current prime minister), RPP and Sadbhavana. Prime Minister Sher Bahadur Deuba may have made some commitments in parliament before putting the emergency order to a vote. But let's not overlook the context. Nepali Congress president Girija Prasad Koirala gave a speech so saturated with the UML's agenda that it forced Deuba's aides to redraft his address. Give the most circumspect of politicians a two-hour parliamentary recess to rework a major policy speech and count how many slips he is apt to make.

The UML has drawn endless charges of opportunism for demanding an all-party election government and a national government during difficult times. But aren't we being a little unfair here? The comrades may be genuinely worried about the sanctity of the ballot and convinced of the need for a wider political base for managing crises. Re-reading Madan Bhandari's statement on his party's critical support for the constitution, you recognise how far Nepali communists have travelled from the realm of rhetoric to the realism of politics. The UML could enrich the debate by describing where it stands on its 12-year-old reservations. The party retains the right, however, to dissociate itself from a statement Bhandari had made as the spokesman of what was then the CPN-ML.

(11 JAN 2013 - 17 JAN 2013)