Priority should be institution-building

Jan Sharma

Dream merchants have been selling road maps for peace that, among others, focus on the amendment of the 1990 Constitution, if not drafting a new one. It is unfortunate that the basic law of the land is being blamed for the dishonesty of the political leaders, incompetence of the civil service and misrule of the political parties. The left wants the kingdom transformed into a republic while the right wants a revival of absolute monarchy, thereby indicating that the country’s on-going chaos and uncertainties will continue for at least some time.

The silent majority caught between rival political interests want peace and stability to return as soon as possible so that the momentum of political and economic reforms unleashed since the revival of multi-party democracy under a constitutional monarchy continues. They want an immediate end to mobocracy in the name of democracy and a government that can govern with competence and efficiency. This is possible when efforts are refocused on building and consolidating political and economic institutions and processes. It requires a merit-based bureaucracy that is insulated from political interference, a neutral but proficient police force that does not play into the hands of corrupt politicians and grassroot political bodies that combine managerial ability with political representation.

The Constitution does not prevent these things from happening. No one is saying that the 1990 Constitution is the best in the world. No constitution in the world for that matter is best. But given the unprecedented threat to Nepal’s national security, worsened by a stalemate between the key political actors, the current debate on the Constitution makes little sense. In fact, it could be part of a larger conspiracy to neutralise some of the significant achievements of the 1990. The issue here is not the role of the constitutional monarchy in the political process and the greater civilian control over the Royal Nepal Army, a key arm of national security. These can be fine tuned on the basis of practices and experiences.

The current debate on the political structure of governance threatens some of the significant achievements of the Constitution. These achie-vements are, among others, Article 126 of the Constitution and Part 2 of the same document dealing with the Nepali citizenship. Article 126 requires treaties or agreements relating to peace and friendship, defence and strategic alliance, boundaries and sharing of the natural resources ratified by a two-thirds majority of both the Houses of Parliament. The only treaty ratified under this provision so far is the Mahakali treaty in 1996. The treaty has come under heavy criticism for being not only as poorly negotiated but also as a bad model for water development and cooperation. Many have questioned the very rationale of this provision in the light of the Mahakali treaty ratification. However, it does provide a major constitutional safeguard to national interests.

The second achievement that is under threat is Part 2 of the Constitution dealing with the citizenship. Attempts have been made in the past to amend the 40-year-old Citizenship Act that entitles citizenship by descent to only those born in Nepal if the father is also a Nepali citizen. The proposed amendment sought to allow citizenship by descent to anyone even if the father was not a Nepali citizen. The Citizenship Act 1963 (Sixth Amendment) bill was approved by the House of Representatives as a money bill in December 2000, but the National Assembly rejected it, arguing it violated the Constitution. The bill was returned to the House, which again passed it in July 2000 and sent it for royal seal. Late King Birendra in February 2001 sought the opinion of the Supre-me Court on whether or not Section 2 of the Bill, passed by the House as a money bill, was consistent with the Constitution. The Court’s special bench in its unanimous opinion said Section 2 was contrary to the constitutional provisions. On the basis of Court opinion, King Birendra ignored the Bill until he was assassinated in June 2001.

Nepal and the Nepalis are on the verge of losing these and many other achievements. It is not surprising that the debate for future political setup never seriously took place during Parliament’s life but is being enacted in the streets of Kathmandu. This is intriguing because the entire Part 19 of the Constitution is devoted to amending the document. If a poorly negotiated water treaty with India has no problem getting a two-thirds endorsement, there is no reason why any impediment cannot be removed or amended within the constitutional framework.

Nepal has a rich experience in constitutional practices dating back more than half a century. It began with Prime Minister Padma Shum-shere JB Rana’s 1948 constitution, which was a victim of family conspiracy. The Interim Government of Nepal Act following the restoration of the Hindu monarchy in February 1951 was largely a carbon copy of the Government of India Act adapted to suit local milieu. The 1962 Constitution was an improvement on the 1959 Constitution. The 1990 Constitution, enriched by the previous constitutional experiences, is definitely not a perfect document. It does not prevent political actors building and strengthening political and economic institutions and processes to share the benefits with deprived population. Precious time is being wasted in changing the basic law of the land every now and then to suit narrow aims.