How the 1990 Constitution was made

(Courtesy: Dr. Dipak Gyawali)

The piece below is being re-posted with the author's consent. The content presents a review of the publication "Constitutional Development and the Constitution of the Kingdom of Nepal 1990," by Senior Advocate Mukunda Regmi. This reviewed work was re-published by Mrs. Sita Regmi on the 9th of November, 2004. This review being highlighted here because it holds immense relevance to the debates that should be occurring, as the nation moves toward constituent assembly elections and onward.

Senior advocate Mukunda Regmi was one of the members of the 1990 Constitution drafting committee from the Nepali Congress quota. Other members came from the Palace and the Left quota (including today's Maoists in the persona of the late Nirmal Lama). Regmi has taken eight years to collect all the necessary documents as well as archival tapes and transcripts to produce this massive two-volume work which will stand as the seminal reference long into the future not only for scholars but also politicians and others debating Nepal's governance.

The first volume begins with the rarely available 1948 "constitutional arrangement" promulgated by Rana prime minister Padma Shumshere as well as discussions and statements related to it. It is followed by an account of the events and declarations related to collapse of Rana rule and the promulgation of the interim constitution of 1951. What is interesting in this account is how the author traces the origins of the "constituent assembly" concept that bedevils the debate in Nepal today to Nehru's proposal and not to that of King Tribhuban, the Rana prime minister or the Nepali Congress.

Much of both the volumes then consist of the account of the sixty meetings held by the 1990 Constitution drafting commission. These have been transcribed from the tapes preserved at the National Archives and can be verified by anyone so interested. They are supplemented with the author's commentary essays on the matters raised in the commission meetings as well as some discussion of the previous constitutions. Since many of the other members of the commission as well as the interim cabinet of Krishna Prasad Bhattarai that ultimately finalized the draft are still alive and active in public affairs, Regmi's opinions can hopefully be challenged by these eminences if they have digressed from the truth.

The second volume also contains the 1958 and 1962 constitutions; but the commentaries associated with them, except for bringing to public domain the otherwise unavailable comments of Sir Ivor Jennings, disappoint on several counts. If 1990 was a "restoration" of the multiparty democracy of 1958, there is little explanation of its positive and functional features that needed retaining in the 1990 version. Also, if the aim of the new constitution in 1990 was to do away with the 1962 Panchayat system, it was essential that some of the positive features of the Panchayat that lasted all of three decades should have been better analysed and retained with improvements. Especially inexplicable is why the decentralized village and district units of governance of the Panchayat constitution were done away with in 1990 and not replaced by anything legitimizing local self-governance.

These two volumes are exceptionally valuable for the documented response from political parties, civil society groups as well as the Royal Nepal Army to the request from the commission for suggestions regarding the future constitution. They contain views and arguments on many issues still debated today, from the word 'Hindu' (which Regmi says refers to the king but not the nation which is de facto secular) to the question of provisions for a referendum (which those who today clamour for a new constitution seemed to be then against). Regmi mentions that the tapes containing the commission's discussions regarding the army (its 44 th session) are currently missing from the archives; but he has provided invaluable service to future scholars by bringing the transcripts that were made then into the public domain.

Valuable documentation is available on the two controversial "palace drafts" of the constitution that were at variance with what the commission produced, including the critical article in the official Gorkhapatra that made it public. What exactly transpired between the Palace and the interim Bhattarai government will probably known as more of the actors involved in the high drama bring forth their memoirs; but Regmi has clearly outlined the differences in the final constitution and the commission's draft. While it is wholly understandable that the Palace would do everything it could to maximize its prerogatives, what is inexplicable are some of the changes introduced by the interim Congress-Left cabinet that so militate against a decent democracy.

For instance, the commission's draft had a provision (Article 120(2)) that required political parties to submit annual audited accounts to the Election Commission: it was removed in the promulgated version's Article 113. The draft also envisaged an upper house that would not only have a significant voice in framing legislation, but also required that it have quotas reserved for three women, three dalits and nine marginalized janjatis not represented in the lower house. In the final constitution, the powers of the upper house were massively curtailed and only the quota for three women was retained.

Similarly, given the massive controversy surrounding Article 126 of the constitution and the subsequent Tanakpur/Mahakali treaty, it is a surprise to learn that the original draft was more stringent: it required all such resource sharing treaties be ratified by a two-third majority. The promulgated version eases matters, allowing any government to do so with a simple majority if matters were not of "a serious, grave or long-term nature". Sadly, in the twelve years that the parties concerned were in parliament, no attempt was made to define this provision, thus leaving water resources development cooperation with the lower riparian in a limbo.

Regmi is strongest in the last chapter where he argues against a constituent assembly. First, everywhere in the world constitutions were made, not by representatives elected to draft them but by representatives elected to legislatures as happened in India under its 1935 Act. Second, the Nepali people have already given approval to this constitution by participating in three general elections under it, thus requiring no further popular endorsement. Finally, in all these three elections, no political party ever went to the people requesting a mandate to amend this constitution or any of its provisions.

One only wishes Nepal's political movers and shakers would listen to these arguments so that the rest of her citizens could move on with the country's development.