Strengths and weaknesses of a country’s constitution are known only in the times of crisis. Slavery was constitutional in democratic-USA until people revolted and was brought to an end through a bloody civil war. Women were not considered citizens equal to men in Canada until women rose up for their rights. At a time United States was spreading “democracy” in the world, most Black Americans could not vote in its own soil. This practice was corrected only in 1964 after the Black Americans revolted against it. When a nation faces a monumental crisis of political nature, the loopholes and flaws of its constitution become apparent.
Most people in Nepal and around the world were in no mood to scrutinize the 1990 constitution of Nepal till the Maoist revolt broke loose in 1996 centering on the constitutional rights of the people who were marginalized for centuries. As the crisis has reached to its climax, and human-rights and human crisis are looming larger everyday, people are forced to review the flawed aspects of Nepal’s constitution and see how fundamental justices were denied to a vast population by a small minority who unfairly retained excessive power to themselves.
Even today, there are some people who think that Nepal’s constitution is not problematic and Nepal’s current troubles have no relationship with it. It, therefore, is imperative that Nepal advances profound debates on the 1990 Constitution, which is a document prepared by a select party representatives and the palace appointees.
No doubt the 1990 Constitution was democratic compared to the Panchayat era constitution of Nepal. However, now that its weaknesses are already exposed, we don’t have to be legal experts to realize that the fundamental power enjoyed by Nepal’s monarchy was not shaken enough by the 1990 Constitution.
Among many undemocratic clauses of the constitution, its three items – Preamble, Article 4 and Article 116 – work intricately together to pervert the essence of democracy. The Preamble reads in all glory that the constitution was issued “with the spirit of strengthening … Constitutional Monarchy and Multiparty Democracy.” The Article 4 declares Nepal as a “Hindu Monarchical Kingdom” implying that all powers are bestowed to a king by the heavens as per the edict of Hindu scriptures; and by this virtue, making the king answerable not to the people but to God. Article 116 states that “A bill to amend or repeal any Article of this Constitution, without contradicting the spirit of the Preamble, may be introduced in parliament: Provided that this Article (116) shall not be subject to amendment.” These articles clauses essentially ascertained that the ultimate authority of the king is to be untouchable by the people through their elected representatives.
Since the system was proclaimed as democracy, people believed that it was going to be a majority rule of common people where the sovereignty originates in the people and is delegated to the government and not the vice versa. What people wanted was an ethical and legitimate form of government, not a powerless assembly that is subservient to an unelected ruler and his entourage who are unaccountable to the people. Unfortunately, autocratic systems in the 21st century often “brand” themselves as democracies while they assume legitimacy through the use of questionable elections and “democratic” sloganeering.
Nepal, today, is one such country.
When popular movement of 1990 brought an era of “weakened autocracy”, people utilized it to make unconstrained expression of their views. This gave them a false impression that the autocracy was already defeated. And, people did not realize that their freedom of expression was going to be curtailed until the palace-centered politicians turned back the clock by bringing emergency rule in November 2001. When King Gyanendra sacked an elected prime minister and started ruling through hand-picked prime ministers in October 2002, he constrained the people even further. The king ultimately shattered any remaining myth of defeated autocracy, when he assumed absolute power in February 2005.
In modern democracies, the power of a government is moderated by a constitution, which protects the rights and freedom of individuals and minorities. Most importantly it enshrines the freedom of expression, press, association and equality of all. However, the 1990 Constitution could not grant these rights to all the people of Nepal. For every sentence that granted a freedom, there was a paragraph to take it away.
The freedom was given to those who conformed to the state-sanctioned ideology but the words were so crafted that it masked the fact that the very essence of democracy was distorted. Introduced through the constitution was a three-tier democracy, which kept the king and his family at the top tier. They were above the constitution, enjoyed full control of the army, and untouchable by any elected official. Select political parties, advantaged and articulate social groups belonged to the second tier. They enjoyed all democratic freedoms as long as they did not contradict with the interests of the monarchy and palace power. The third-tier population was made of those who were marginalized for centuries – those who were not articulate enough, who were unable to speak for themselves or were not organized enough in large masses. They were denied of their intrinsic rights that were supposed to be enshrined for them in the constitution.
The constitution merely permitted election of powerless officials from among a population carrying a limited set of ideologies and is flawed in the following ways:
- The people are not permitted to choose a system: e.g. people cannot form a republic, adopt federalism, or fully separate the religion and state.
- There are restrictions on the power of elected representatives. In a democracy, the people, via elected representatives, hold ultimate power in all state affairs.
- There are restrictions on amending the constitution by elected representatives.
- Free and fair elections are not ensured. Even if the election were to be free, it could not be fair as what can be chosen by the elected representatives is already limited. The selection of candidates and parties itself is controlled. For examples the parties whose stated goal is to overthrow the monarchy are unconstitutional by default.
- The rulers are exempt from the rules of governance. In a democracy, a ruler is answerable to the people and people retain the right to overthrow a disliked ruler.
- Some people are treated more favorably over others. For example, children of a Nepali father can automatically gain citizenship of Nepal but children of a Nepali mother with cannot gain Nepali citizenship unless the Nepalese citizenship of their father could be proven.
- The freedom to advance unconventional ideas is not protected in the Constitution.
By implicitly placing the population into three categories and denying people a constitutional right to limit the power of the top tier citizens, the king and the palace, Nepal’s 1990 Constitution defeated the spirit of democracy at its core. The king and his courtiers are above any law and above the people and not under the people as hereditary rulers are in democracies like Britain, Sweden and the Netherlands.
Soon after its release, many minority parties and groups demanded change and wanted to enshrine their democratic rights in the constitution. Having full control of the army and state machinery, the palace centric elites dismissed the rights of these people. This matter later emerged as the central issue of contention and a major cause of conflict in Nepal. Today it has become impossible to imagine a peaceful Nepal without bringing a new constitution that brings all Nepalese to its fold and asserts the sovereignty of people. Although not sufficient, the democratic constitution is a necessary first step towards establishing peace, justice, and democracy in Nepal.
It can also be contended that even if there were a fully democratic constitution in Nepal, true power would not come to people as long as the palace-power and the military-power are interlinked through family ties that are built over centuries. The breakup of this family relationship of the palace and the army is necessary for any future democracy to function and flourish.