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Nepal Monitor: The National Online Journal

Time for a Complete Renewal

There have been at least 5 compromises with the traditionalist monarchy, argues KARL-HEINZ KRÄMER, but they all failed. Nepal cannot cope with another compromise, he says, the politicians have to learn that it is time for a complete renewal of the nation.

Nepal today is in a very decisive phase of socio-political changes. However, this is not the first such juncture this nation has experienced. The people's movement (Jana Andolan-I) of 1990, within only a few weeks of it launch, resulted in the end of the 30-year Panchayat system and the introduction of a democratic parliamentarian system with a constitutional monarchy.

Many people in Nepal as well as others outside, interested in Nepal, had believed that the democratic forces had finally overcome the authoritarian power ambitions of monarchy after 40 years. Only a few realized that the events of 1990 did not mean real revolutionary changes, but that they were once again a compromise with the conservative socio-political forces whose symbol is the institution of monarchy.

Actually, the roots of the current crisis go back far beyond 1990 to the early years of the modern Nepali state. They have to do with the way in which the country has been forcefully unified and structured by the Shah monarchy. After 1950, it was again due to monarchy that state, society and economy could not democratize and liberalize. Similar compromises like the one of 1990 had already been concluded in 1951, 1958/9 and 1979. In 1951, King Tribhuvan had promised to introduce a democratic system by holding general elections for a constituent assembly within two years. In 1958, King Mahendra admitted to have a constitution been written and to hold parliamentarian elections. The elections took place in 1959 but the constitution was everything else but democratic and it became misused by Mahendra when he putsched in December 1960. In 1979, King Birendra promised to hold a national referendum on the future of the Panchayat system but his government misused the state machinery and disallowed independent observers. All these compromises have been recklessly misused by the monarchy to push its absolutist interests through.

Lessons from 1990
Perhaps the biggest mistakes were made in the aftermath of the 1990 movement. Representatives of ethnic groups, Dalits, Tarai population and women in general as well as of the numerous extreme left parties were not included in the drawing-up process of the constitution. This led to numerous constitutional flaws.

Ironically, the preamble of the constitution began with the incorrect statement that the constitution was written with the greatest possible participation of the Nepali people. The constitution and the subsequent governments continued to cling to the notion of the Hindu state, not recognizing the fact that Nepal is a multi-religious and multicultural state (article 4 of the constitution is categorical of this).

Nepali mother tongue speakers, who largely constitute the traditional state elite, were given advantage at the expense of other linguistic groups, such as Newari, Maithili, Bhojpuri, Sherpa, Abadi, and Tamang. According to the census of 2001, only 48 percent of the total population speaks Nepali language as mother tongue. Another is the exclusion of social and interest groups that are not oriented along the Hindu state and its values from the parliamentarian process.

The directive principles and policies of the state should have been the orientating foundation of the politics of governments and parliaments. But such directive principles and policies could not be legally enforced according to article 24 of the constitution.

The constitution also secured powers and privileges of the king and his family that went far beyond those of a constitutional monarch as understood in the West. The royal advisory council (Raj Parishad) was maintained. The Council was totally misused by King Gyanendra after 2001 to bless his power politics outside of parliamentary institutions and even on the regional level by holding regional conferences. The king also continued to enjoy direct nominal executive and legislative participation even though the latter had no independent rights in this context. He also continued the role of supreme commander of the army; despite his conflict of interest with the National Defense Council.

There was yet another flaw in terms of national representation. The refusal to use the National Assembly (Rastriya Sabha) for parliamentarian participation of rural areas and traditionally excluded population groups testified to this fact. There was also far-reaching disregard of the Directive Principles and Policies of the State (articles 24-26) by the governments and parliaments after 1990. There are many examples. There was no balanced development of the various geographical regions of the country; there was no promotion of the different languages, literatures, scripts, arts and cultures of the country; there was no promotion of the interests of the economically and socially backward groups and communities; etc. All this has been demanded by article 26 of the constitution.

The language of the constitution was equally problematic. There were numerous ambiguous definitions within articles of the constitution, e.g. in context with the dissolution of parliament (article 53) or concerning difficulties in the implementation of the constitution (article 127). Article 53 made the dissolution of parliament dependent from new election within six months. This leaves the consequence that the dissolution automatically became invalid when elections could not take place in 2002. But King Gyanendra interpreted it as a constitutional crisis which was “solved” by him through article 127. The latter article gives the king the power to remove minor difficulties within the implementation of the constitution. Gyanendra interpreted it as an open invitation to smash the constitution and grab absolute powers.

Last, but not least, the notion of forgive and forget was adopted without analyzing the nature of crime and public offenses. Amnesty was granted for crimes and grave human rights violations during panchayat times

People’s Will in 2006
The recent Jana Andolan-II of April 2006 was an impressive movement that happened not only in the Kathmandu valley and the urban centers, but also in rural townships across the country. In that way, its scope and impact was larger and wider than that of Jana Andolan-I of 1990. The people demanded an end to the royal power games, and the reinstated parliament helped to implement their demand.

The cutting of royal powers is the first step toward solving Nepal's fundamental problems. In deed, the way will be long and difficult. One of the challenges will be to meet people’s aspirations that run very high. Already, the very first weeks after the reinstatement of the 1999 parliament have been everything else but rosy and unanimous, as many people, who had demonstrated on the streets during the April movement, had hoped.

One may fear that the euphoria will soon turn again into disappointment as it happened in the early 1990s. It has become apparent once again that many of the party politicians have fallen back into their old ways. One of their outstanding defects is their conceitedness that has already established itself as trait of Nepal’s political life. Why do these politicians not start a process of democratization of their own parties? They do not need a new constitution to do so.

The reinstatement of the House of Representatives on April 24, 2006 has been the easiest means to give powers back to an institution where they should have rested, according to the 1990 constitution. But the members of the reinstated parliament should have been aware that the constitution of 1990 died when King Gyanendra staged his coup on October 4, 2002. The parliament of 1999 should have been reinstated in October/November 2002 when new elections could not take place. The dissolution of parliament in May 2002 became invalid automatically when new elections could not take place. In other words: All the royal power games under misuse of article 127 have been absolutely unnecessary and anti-constitutional.

But the legitimacy of the 1999 House of Representatives, along people's mandate, would have ended in May 2004 latest. In other words, even the recently reinstated parliament cannot claim legitimacy because it does not have direct mandate of the people. The reinstated parliament and the interim government of Prime Minister Koirala can only take the very first steps to lead the country to an immediate and hopefully better new beginning.

The party leaders fail to appreciate this if they fight for positions in parliament and interim government, if they aim at forming a council of ministers with 20 or more members, if they make arrangements for a longer term in office, or if the parliament tries to provide itself legitimacy by proclamation. If they continue these old ways, where do the party politicians derive these rights from, and how are they different from the illegitimate royal government?

The events of April 2006 may have been pushed by the Seven Party Alliance (SPA) with the aim of four days of strikes and mass demonstrations. But it is because of the people’s will that this turned into the biggest mass movement that the country has ever faced (and that changed Nepal totally overnight). It has been entirely the merit of civil society, not of the party leaders. The latter now have the duty to transform the will of the Nepali people (who demonstrated on the streets so impressively) into durable and sustainable changes.

The demands of the people have been unmistakable. They have called for an end of the autocratic and dictatorial rule of the king, eventually abolishment of monarchy and introduction of a republic without a king, end of the Maoist insurgency, durable peace, end of the exclusive political, social and economic system, introduction of an equal and just society with participation of all population groups, democratization of political parties and state apparatus, constitutional behavior in politics and administration, guarantee of a representative and just election system.

They also have demanded people's control of the security forces, implementation and control of fundamental and human rights, preservation of the dignity of all citizens, introduction of a sufficient welfare and supply system, just distribution of and access to the natural resources of the country, etc.

No More Compromises
To achieve the above goals, the ongoing peace process must continue smoothly. I have always advocated the view that if a durable peace is on the agenda, then the Maoists should share responsibility. I also have argued in the past that talks should head immediately towards the formation of a new interim government in which also the Maoists should participate. The recent accord, in which the Maoist insurgents and the government agreed to from a new interim government with representatives of the SPA and the Maoists, is an encouraging sign even if US representatives like the Ambassador Moriarty try to prevent it.

This new government of national consensus should provide itself a legal basis that regulates its work, keeps the functions of the state running, guarantees the fundamental rights of the people, and can serve as foundation for the common agenda of holding general elections for a constituent assembly. Such legal basis can only be provided by an interim constitution.

The formation of the interim council of ministers is also necessary. The transitional stage has more or less been completed with the reinstatement of parliament, the House of Representative proclamation of May 18, and with the ceasefire and the start of a dialogue with the CPN (Maoist). There was no need to expand the cabinet further; the council of ministers with only seven members would have been sufficient.

Nepal is currently in a state of lawlessness and illegitimacy. The constitution of 1990 does no longer exist. The parliament's proclamation of May 18 has already first signs of an interim constitution because it defines and regulates a number of passages of the 1990 constitution in a totally new way. But this proclamation is incomplete.

For example, it does not stipulate which parts of the 1990 constitution shall continue to be valid and which ones will be totally invalid. A minor improvement followed on July 3 when the House of Representatives declared 50 articles and 31 sub-clauses of the constitution as "contradictory" with the HoR Declaration of May 18 and unanimously decided to scrap them. But the parliamentary proclamation also does not mention the fundamental rights, the judiciary, the urgently necessary democratization of the political parties, the integration and participation of the excluded population groups, etc. Besides, the Maoists did not participate in the formulation of this proclamation, but Nepal cannot have a certain future without the participation of the Maoists in the common democratic path. An interim solution to the issue of Maoist troops is also equally important. As long as the state of civil war exists in the country, the Maoists will continue to extort money and resources from the general public and state institutions to feed their army.

There may be a ceasefire now but the extortion will only stop if the supply of the Maoist army is secured. All these necessary regulations must become part of an interim constitution commonly arranged and agreed by SPA and Maoists. With the formation of an interim government of SPA and Maoists and the agreement of an interim constitution, the reinstated parliament would also become superfluous. It should not take far-reaching decisions because it does not have the legitimacy. It should at least be frozen in case there are still doubts in the intentions of the Maoist leadership.

Another outstanding example of the lack of legitimacy of the restored parliament is its incapacity to take the atrocious royal politicians to the court. Nepal must not repeat the mistakes of 1990. Those human rights violators and distorters of facts like Kamal Thapa, Tanka Dhakal, Ramesh Nath Pandey, Shrish Shamsher Rana, Nikshay Shamsher Rana and others have to be brought to court. For this, the interim constitution has to provide a legal basis as well. The recent decision of the Supreme Court to set these culprits free has made clear that the interim regime cannot apply the same criminal laws as the former royal regime.

The next step then would be elections for a constituent assembly. This has been the main demand of the CPN (Maoist) for years and it has also been part of what the people have called for during their demonstrations on the streets in April. The preparation and realization of these elections would be the main task of an interim government of SPA and Maoists. One of the most difficult challenges will be to ensure appropriate participation of all population groups and sections of society in the constituent assembly. The political parties totally failed in this regard, after 1990, and there is no sign yet that they have recognized their mistakes.

I will only mention one example. On May 30, the reinstated parliament decided to upvalue the legal position of women. The discrimination of women is part of Nepal's fatal traditional thinking. The constitution of 1990 upheld this thinking. It mentioned in article 11 that all people are equal independent of gender, etc., but even within the 1990 constitution there have been a lot of contradictions and discriminations against women. Now the parliament wants, for example, to reserve one third of all positions in state institutions for women and it also wants to give women the same status in context with citizenship rights. It did not even take one day before male elite circles claimed that this could not be implemented quickly and hinted on the regulations of the 1990 constitution. One must ask these male chauvinists if such conflict did not exist as well when the parliament passed its historical proclamation of May 18 which has changed or annulled numerous constitutional rules of 1990, especially in regard to the role of monarchy.

Nepal's leadership is still deeply rooted in traditionalism. Traditional thinking and the hierarchical social system that has been transferred upon the whole society by the Shah monarchy are, to a greater part, responsible for the fact that Nepal has had so many problems with liberalization and democratization for the past 55 years. Many party leaders have been born into and educated along these fatal structures. Verbally, they may try to distance themselves from these traditional values, but in very decisive moments they are not able to transfer their intentions into actions.

The fact that the democratization of the parties is once again missing in the May 18 proclamation of the parliament is another proof that the party leaders do not realize their own mistakes. The party leaders and parliamentarians must become aware that the elections for a constituent assembly cannot take place on the basis of party candidates. It has to be guaranteed that all national interest groups will participate in the constitutional process in the most adequate way and that their issues are respected in every way.

Should it be possible to elect a constituent assembly that is able to provide a democratic constitution that gives all Nepali people an adequate and respectful chance for participation in state, society and economy, only then could the country be on the way to a peaceful and optimistic future. Nepal cannot cope with another compromise; the politicians have to learn that it is time for a complete renewal of the nation.

Karl-Heinz Krämer, Ph.D., represents Nepal studies at the Department of Political Science, South Asia Institute, University of Heidelberg, Germany. He also maintains a Website on Nepal and Himalayan Studies:

Posted by Editor on July 4, 2006 12:05 PM