| October 20, 2020
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A continuous conundrum

A continuous conundrum
Jaffnaization as a desirable goal and Mahendra Rajapaksa as an ideal protector of the ruling Jaati have begun to crop up during soirées of PEON salons in Kathmandu

Popular sovereignty, equality in law, individual rights, due process, and grievance redressal are some of the basic principles of any written constitution. No sovereign can allow himself or herself to be bound by such supreme laws. That could have been the reason Premier Padma Shamsher decided to call the statute that he promulgated in 1948 merely the Government of Nepal Act rather than the constitution of the kingdom.
Padma's statute went into effect on April 1, 1948 and Premier Mohan Shamsher assumed power on April 30 the same year. Within a month of its practice, the Act became redundant. The Last Rana failed to see that the statute had been an attempt to make friends and influence people in the capital city of independent India.

Clarity of purpose of a constitution is perhaps even more important than its principles. In making of a constitution, the framers must answer the fundamental question in all sincerity: What are the reasons that had made a new statute absolutely necessary? Once a satisfactory answer has been found, rest of the task is largely technocratic.

In promulgating the constitution on February 12, 1959, King Mahendra had deceit on his mind. He precisely knew the provision that he had at his disposal to dismiss a government with two-thirds majority in the legislature within 18 months of its formation. The purpose of his constitution of 1962 was to bolster the absolutist Shah Rule.

Once he had succeeded in post-facto legitimatization of unrestrained monarchy through a plebiscite in 1980, King Birendra enforced such wide-ranging amendments that the constitution of his father became almost a new one. Its objective, however, remained the same: Re-strengthening of Shah Rule in the changed circumstances of South Asia.

The Constitution of Kingdom of Nepal, 1990 intended to mainstream opponents of absolute monarchy through restoration of parliamentary democracy. The statute was an orphan from the day it was promulgated. The self-proclaimed communists weren't happy with its limited scope. The conservatives were resentful as they genuinely believed that the monarch had conceded too much. Those in the middle erroneously thought that they could somehow keep ruling forever by using one to threaten another. Once celebrated as one of the best constitutions in the world, the statute began to unravel within five years of its adoption.

The purpose of Interim Constitution of Nepal, 2007 is perhaps clearest of all. It seeks to transform unitary and exclusive polity of Nepal into a federal and inclusive republic through twin processes of democratization and federalization in a legitimate manner. Elections of Constituent Assembly were deemed necessary to acquire popular legitimacy, international recognition, and redemption of a public pledge to promulgate a constitution through popular participation.

Strangled statute

Having gone through multiple mutilations since it came into effect eight years ago, the interim statute has lost its essence. In May, 2011, it was interpreted to establish supremacy of law courts over popularly elected Constituent Assembly. Soon after, the constitution was twisted to allow the formation of an extra-constitutional government. And it is being used almost every day to legitimize whatever the Permanent Establishment of Nepal (PEON) deems fit in 'national interest'. If attempts of the Three Party cabal succeed, the country will soon have a statute promulgated through super fast track.

Will a constitution made merely to pave the way for the transfer of power from one set of politicos to another last? Constitutional history of Nepal doesn't offer encouraging answers.

Padma had to flee the country once his constitution failed. BP Koirala, the prime mover of 1959 constitution, spent most of his life either in jail or in self-exile. King Birendra had to surrender within a decade of taking supposedly bold steps. After remaining in political limbo for over a decade, Krishna Prasad Bhattarai, the head of government that had seen through the enactment of 1990 constitution, died embittered. Even Girija Prasad Koirala, the head of state as well as the government when the Interim Constitution of 2007 was adopted, was disillusioned in the end when his dreams of institutionalizing constitutional rule remained unfulfilled.

The ground reality hasn't changed much in nearly seven decades. Constitutions of Nepal are still being made in fear of the masses rather than reflect hopes of the downtrodden, disenfranchised, marginalized and the externalized sections that constitute majority of the population.

Five fears

The PEON that holds all levers of control over apparatuses of the state refuse to accept that Nepal is a multiethnic, multi-religious, multilingual and multinational country. Consequently, it wants a statute that will give continuity to its unhindered hegemony. It has been hawking dread to consolidate control over its own community and to ensure desired outcome. Fear is the key to understanding communal politics being played by dominant castes at the helms of constitution-making.

The first fear being purveyed is that of purity of Nepali Jaati. Racialism is a strong term, but tribalism (tendency to form group loyalty based on certain real or imagined similarities) has remained the basis of manufacturing imagined Nepali Jaati. Provisions of bloodline, ancestry and Nepali origin in the draft constitution are all aimed to prevent 'pollution' of the tribe. If these stipulations smack of patriarchy and end up excluding children of bona fide daughters that dare to marry outside the clan, then so be it. That's a small price to pay to prevent Fijikaran of the land of the pure and the brave.

Independence is the second fear. It expresses itself through lopsided laws of representation that shall turn Madheshis into second class citizens with lower representation in the legislature per thousand voters than pure Nepalis. The neologism of Sikkimikaran is so strong that even otherwise reasonable people of the dominant community fail to see the absurdity of this logic.

Though not as inflammatory as Fijikaran and Sikkimikaran phrases, Bhutanikaran is yet another weapon in the arsenal of exclusivists. The specter being portrayed is that policies of inclusivity will slowly transfer the reins of power from supposedly meritocratic PEON elite to reservation beneficiaries of hoi polloi that have little appreciation for the grand Gorkhali traditions of King Prithvi and his Divyopadesh. Since the autonomy of the Nepali Jaati must be protected at all costs, clever ways must be incorporated in the constitution to water down provisions of inclusion.

King Prithvi had created Asali Hindusthana and secularism risks diluting the identity that had maintained the primacy of Gorkhali caste-Hindus in society. Kshetriyas mostly belong to a manufactured caste of princes, chieftains and successful warriors that were conferred with Gotras and accompanying sacred thread by obliging priests for pecuniary considerations. Like all neo-converts, they consider themselves militant protectors of cow and Brahman.

The threat of losing religious identity has been fashioned into Hindutva ideology in India. While fears of Fijikaran, Sikkimikaran and Bhutanikaran are all aimed at Madheshis inside the country and India across the border, the project of creating Hindu Pakistan (pure land of Hindus) attempts to lure fellow believers of the southern plains and placate religious zealots of the resurgent order in New Delhi. Pakistanization thus has no negative connotation in PEON conversations.

Fear of losing integrity through federalization is yet to get a single name. But Jaffnaization as a desirable goal and Percy Mahendra Rajapaksa as an ideal protector of the ruling Jaati have begun to crop up during soirées of PEON salons in Kathmandu quite often. The emphasis is invariably on the middle-name Mahendra with Rajapaksa pronounced in a slow and deliberate manner.

Albert Einstein is often quoted as having said that the common sense is the collection of prejudices acquired by age eighteen. The trio of Pahadi Brahmans that hold the destiny of the country in their hands as supreme lawgivers have all grown up in a milieu where Nepalipan meant characteristics of the Hindu, Aryan, Male and Nepali Speakers (HAMNS) community. Madheshis, Muslims and Tharus could never be imagined being a part of the exclusive category of Nepali Jaati. A constitution that seeks to institutionalize such prejudices is unlikely to go unchallenged. It appears that the constitutional conundrum of Nepal is not going to end any time.
CK Lal

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