The historic Constituent Assembly (CA) is going to promulagte the new constitution today, ending the Nepalese people’s over 60-year long wait for the main law of the land written by the hands of their own elected representatives. Until a few days ago, uncertainty loomed large whether the CA would be able to draft the constitution within its extended deadline. This misgiving was legitimate given the political parties’ deep differences on the state restructuring agenda. It is not that they have settled the federal issue now. The parties are compelled to write the statute by May 27 after the Supreme Court quashed the government’s move to extend the CA’s term by three months. The SC interim order shut the door of extending the CA’s tenure, leaving the parties with no choice but completing the statute writing by the stipulated deadline. The CA has resolved most contentious contents except for federalism. If they fail to finalise the name, number and demarcation of the provinces, they will leave it to the ‘transformed’ parliament to settle before setting the stage for the announcement of the new statute.
Refusing to follow this expected course will be costly for the parties as well as the nation. In case the statute is not promulgated by Sunday midnight, the country should choose one among three alternatives – referendum, another election to the CA and other constitutional measures as per the verdict of the Apex Court. The referendum and new CA polls can hardly be the rational options at the moment. What do constitutional measures mean is unclear. The best way is to maximize the ‘flying time’ to sort out the remaining disputes so that the nation will get the new constitution, thereby, bringing an end to the tedious and excruciating transition period.
Writing the constitution through the CA has been a major agenda of the Communist Party of Nepal and Nepali Congress since their inception. CPN founder general secretary Pushpa Lal Shrestha and NC leader BP Koirala had emphatically raised this in their programmes and policies. However, it formally became the government agenda when the last Rana Prime Minister Mohan Shumsher included it in his 1951proclamation in order to pave the way to bring NC representatives into post-revolution interim government. More than one month later, it figured in the historic proclamation of king Tribhuvan in line with ‘Delhi Compromise’ struck among the King, the Ranas and the NC leaders at the behest of Indian government.
But, king Tribhuvan betrayed the people and CA poll was not held. With the downfall of Ranas, executive power gradually concentrated in the hands of the King. His ambitious son prince Mahendra played one party against another to further push the prospect of CA poll into oblivion. There was public uproar when prime minister Tanka Prasad Acharya, in his public address in 1956, claimed that it had not yet been decided whether the upcoming elections were meant to elect CA or just the parliament. This angered BP Koirala and he filed a petition at the Supreme Court against Acharya’s statement, citing that it violated the King’s proclamation and spirit of the People’s Representative Act which said the people’s representatives would frame the constitution of the land through the CA. But the court rejected his plea, basing its decision on the replies of Acharya. The wording ‘Constituent Assembly’ in the Interim Government Act, 1951 was replaced with the ‘Parliament’ through its fourth amendment by King Mahendra in 1958. He took advantage of ambiguity of 1951 political consensus and called parliamentary elections, not the CA, which left the issue pending for more than six decades.
Instead of people’s constitution came the Constitution of the Kingdom of Nepal, 1959. It was the third constitution of Nepal that vested executive authority on the King. The country’s first written constitution was Nepal Government Act, 1948, which Rana Prime Minister Padma Shumsher was to declare in order to dampen rising people’s unrest against the Ranas. But, it could not be implemented as autocratic Mohan Shumsher forced liberal Padma Shumsher to leave the country in the height of political tussle propelled by growing public resentments. The Interim Government of Nepal Act, 1951 that encompassed many provisions of Indian constitution was the second constitution. It was ordained by King Tribhuvan to manage the transition period following the end of Rana oligarchy.
The Constitution of Nepal, 1962 promulgated following the royal takeover served the interest of monarchy under the partyless Panchayat system. It was the fourth statute that was amended several times to bolster the regime’s control over the people. As the fifth constitution, the Constitution of the Kingdom of Nepal, 1990 came into existence after the popular movement brought the dictatorial monarch under the constitutional framework. It envisaged fundamental principles of democracy and human rights. But, the constant failure of parliamentary actors combined with the roaring Maoist insurgency dealt a severe blow to it. The Maoists revived the idea of CA that finally became the common agenda of all the parties. The Interim Constitution, framed prior to the CA poll in 2008, replaced the 1990 constitution.
The Interim Constitution, 2007, which is the sixth constitution, has documented the landmark socio-political changes that took place in the aftermath of April Uprising in 2006. It reflects the essence of the seventh constitution being promulgated today. Its salient features include republicanism, federalism and secularism. Prepared by selected experts, it is the inclusive statute ever written in Nepal but it is being replaced by a more comprehensive and inclusive constitution. It is going to fulfill the long cherished dream of the Nepalese people to have a democratic constitution written by themselves.
The new constitution has, for the first time, systematically addressed the rights and aspirations of ethnic, marginalized and minority groups. It reflects the major power shift and the unprecedented level of ideological transformations. However, the rising number of unrealistic demands and the emerging stakeholders pushing to include their concerns in it pose a question to its viability. Any coercive effort to cram everything in the main law of land could make it overburdened and imprecise. The constitution should be a dynamic document. It requires timely reviews and amendments for its success and sustainability. The most truthful fact is that no constitution, however well written, can by itself guarantee peace and prosperity. It is the visionary leadership, enlightened citizens and shared common values that enable it to be effective, functional and living document to the benefit of all the countrymen.