 KIRAN PANDAY |
The year 1951 marked a significant change in Nepal's politics, and India played a major role in that change. Although the royal proclamation got legitimacy in the country, it was designed and drafted in Delhi on December 1950 and became known as the 'Delhi agreement'.
The deadline for writing the constitution in the 1951 movement was not met, creating a political vacuum, uncertainty and instability. There were high spirited politicians who lacked experience in state affairs, so the king and other external political forces were able to meddle in Nepali politics.
As the country gradually embraced democratic values, India tried to mould the hanging political situation in its favour. It imposed an economic blockade, which ultimately resulted in the 1990 Constitution, which its writers claimed was the best in the world. Despite a few inconsistencies in the 1990 constitution, it has generally been hailed as a broad document of consensus under which three general elections were conducted and a lasting solution for national integration and development was forged.
The constitution remained uncontested and no amendments were proposed in parliament. But the political parties that had drafted the constitution of 1990, criticised it and ultimately promulgated the Interim Constitution in 2006. The influence of regional politics was there for all to see. There have been six amendments to the interim constitution since it was passed two years ago.
The main highlights of the 1990 constitution were the prime ministerial parliamentary system and universal adult franchise. Under the prime ministerial parliament, the PM inherits the right to dissolve parliament and call for a fresh mandate from the people any time he deems it necessary.
Unlike in India, there has never been consistency in the court verdicts on the PM's prerogative rights in Nepal. The court has given contradictory verdict at times. The house was dissolved in 1994 in which the court upheld the newly elected government. Man Mohan Adhikari's decision was scrapped by the court.
Ignoring the spirit of parliamentary democracy, this verdict established the power of parliament to remove the PM and infringing the prerogative of the PM. Consequently, the PM kept on changing and MPs became pawns to make and break the government. The irony is that those who had drafted the constitution and those who had set the precedence made decision against their own decision. In this process, politics prevailed on legal knowledge and expertise.
Before this verdict of the Supreme Court, the PM had stayed in power for more than three years but after the verdit the PMs lasted less than two years. It would cost him dearly if he wanted to stay in power?the parliamentary members could bargain for their price.
It was a turning point in Nepali constitutional practice and a deviation in the prime ministerial parliamentary system. The position of the PM remained constantly unstable while MPs had greater bargaining power.
In 2001, after the royal massacre, the ambitious King Gyanendra sacked Prime Minister Sher Bahadur Deuba and announced the date for the election. He introduced direct rule, another major setback in the constitutional practice.
The third major deviation in the constitutional process is the proclamation made by the reinstated parliament in 2006, which had no constitutional base. The constitution which reinstated the parliament was annulled by the reinstated parliament. This parliament then went on to promulgate the interim constitution before the constituent assembly drafted it.
Political parties and individuals are busy fighting for power. They don't seem to be concerned about the new constitutional framework, and they hold intractable views on what it should be like. It is unlikely that we will be able to finalise the constitution but we will rather end up endorsing the draft of a constitution prepared elsewhere. The problems associated with the constitution writing process are beyond the control of Nepali people and politicians.
Ganesh Raj Sharma is a legal expert.
Ten reasons why ethnic federalism is a bad idea
B P GIRI
Ethnicity-based federalism has been on the agenda of many ethno-political groups in Nepal. There are 10 problems associated with it:
1. Ethnic federalism links each ethno-cultural group with an exclusive territorial homeland. Since there are many dozens castes and ethnicities living in Nepal, to be fair to each group, we will need to create an exact number of homeland provinces. This is impractical.
2. A few bigger ethnic groups have demanded an ethno-federal setup. If we let only these groups have ethnicity-based federal provinces, other groups will feel cheated and an agitation for more provinces will follow.
3. Ethnic federalism is based on the belief that people of specific ethnic origin are concentrated in separate regions of the country. But no region has more than 35 per cent of the dominant group, most areas have an even lesser ethnic concentration. What is the justification for letting a few larger minorities become political majorities in their regions?
4. Ethnic federalism is based on the primacy of ethnic identity over other sorts of collective identities. Such thinking puts our newborn democracy at risk as it reduces acts of citizenship to biological inheritance.
5. Democracy is first and foremost about empowering citizens by ensuring the free exercise of natural rights. An ethnic group's understanding of itself as a genetically bounded entity, whose membership is fixed in advance, imposes a type of rigidity over citizenship rights quite opposed to the democratic spirit. Its basis in tribal thinking cannot be the source of democratic politics.
6. Ethnic federalism romanticises the ideas of race and culture. But cultural practices cannot be wholly group-specific. In fact, we need the openness of democracy to fight many shared cultural evils, including castism, sexism, racism, child marriage, and dowry system. When the unitary state is presented as the sole source of injustice, culture and society are left off the hook.
7. Ethnic federalism is driven by elite self-interest. Many among ethnic elites have been complicit in the unjust political practices of the past. Now they are eager to re-invent themselves as custodians of future ethnic provinces. Their ethnocentric politics of race, culture and identity is often at odds with the egalitarian agenda of mass political parties.
8. Ethnicity-based federalism is unacceptable for the same reason that an upper-caste dominated hill-centric state is unacceptable. A multicultural arrangement, one that accepts the principle of diversity as its formative principle, is desirable at both central and provincial levels to discourage the nativist tendency ("my tribe, right or wrong") that
constitutes the bottom-line of ethno-national politics.
9. Ethnic federalism is geopolitically dangerous. What happens if one or more ethno-federal territories, constitutionally autonomous and possibly self-determinate, declare independence with or without any foreign support? The ongoing rivalry between India and China for regional influence indicates that Nepal is sitting on the fault-line of two hugely incompatible regional ambitions.
10. Ethnic federalism is a wrong medicine to the problem of caste and ethnicity-based exclusion for which it is prescribed as a cure. The problem of exclusion is real, but we need to find better solutions to it, like: legal protection of minorities, full citizenship and cultural rights, bureaucratic-political inclusion and greater economic opportunity. A substantive inclusion of previously marginalised groups into state organs is already underway. As a result, the state is changing rapidly from its hill-centric ethnic character to a far more inclusive civic entity. We should design our federal units in such a way that they complement these goals, not contradict them.
B P Giri is currently on research leave from Dartmouth College, USA, where he teaches postcolonial literature and theory.
