| January 19, 2018

Victors take all

Victors take all
In the ongoing constitutional game of Nepal, Malinowskian Minds have prevailed once again. Politicos loyal to the interests of geopolitical players, rather than to the people of the country, have prepared a draft of the Federal Democratic Republic that intends to keep federalism in abeyance, ensure the practice of guided democracy through the supremacy of political parties, and institute a synthetic republicanism that disowns secularism, disavows inclusion and deny citizenship rights to a significant section of population.

Strengthening of the status quo implies that every external actor with a stake in the internal affairs of Nepal can continue to breathe easy. Denial of federalism means that the People's Republic of China can rely upon repressive machineries of Kathmandu that maintain peace along sensitive highlands bordering Tibet Autonomous Region. With nearly two-thirds of all security forces of Nepal amassed in Tarai-Madhesh, strategists in New Delhi can now concentrate upon paani (water) and jawani (youths) of mid-mountains just as the Indian Prime Minister Narendra Modi had emphasized in his address to the Constituent Assembly.
Despite de rigueur protestations about cultural privileges of religious minorities, citizenship rights of the deprived sections of population, and institutionalized practice of gender discrimination, Europeans must also be happy that the power elite that has kept Nepal as the sentinel of Western interests in the heart of Asia for nearly two centuries has managed to safeguard its preeminent position even in the twenty-first century.

Nepal's benefactors and friends such as Sheikhdoms of Western Asia and Israel; monarchies like Thailand and Japan; and a republic modeled after USA in South Korea also must be happy that yet another country in South Asia has chosen to defy diversity and place its trust in the single-identity idea of a "one country, one culture, one religion, one language, and one people" nation-state.

Malinowskies of Washington DC probably had multiple interests in designing the desired outcome in its longtime client state. Denial of federalism—whether in the name of necessity of decentralization or desirability of development is beside the point—will mean that there will be détente between two emerging powers of Asia that are equally important for its strategic and business interests in an area governed by its local proxies. Permanency of the Establishment ensures that its primacy will not be questioned.

Transnational powers compete for power and influence in many countries. Afghanistan has been bombed to stone ages in the process. Bangladesh continues to bear the brunt of Islamists on the one hand and libertarians on the other. Whenever the government of a weak country tries to put its national interests first, powerful players unleash all their resources to subdue or overthrow it.

The ruling elite of Nepal has always been very careful in choosing its masters. The Ranas stayed with the British throughout the colonial era. The Shahs opted to align with Americans during the Cold War. The republican politicos have decided to address enduring interests of the land and the sky neighbors of Nepal. Little wonder, it has taken almost seven years to come up with a draft constitution that attempts to maintain a fine balance between competing external stakeholders.

Perfect timing

Timing is crucial for the success of potentially controversial endeavors. There is a reason the draft constitution is slated to be promulgated through 'double fast track' now, even though it was scheduled to be brought much earlier. Maoists had to be given some time to lick and heal their wounds. Madheshis had to be humiliated into submission. And the final document had to carry an air of urgency.

With at least a silent concurrence of important players gathered in Kathmandu in the name of International Conference on Nepal's Reconstruction (ICNR) in its bag—along with a commitment to fund $4.4 billion to weather out possible exigencies—the Permanent Establishment of the Nation (PEON) had no reason to delay the inevitable. The script of the draft statute has been ready from the day the-then Chief Justice Khil Raj Regmi had sounded the death knell of the first and the most inclusive Constituent Assembly in the history of the country.

Justice Regmi, who later assumed the authority of the Chairman of the Interim Election Council to conduct last rites of federal aspirations through the creation of a fresh mandate, had thundered from his hometown in December 2011 that the Supreme Court had always "weighed its decisions in favor of the constitution and the need of the country (Emphasis added)..." In the process, the Interim Constitution had been torn and consigned to the dustbins. The 16-point agreement between four big parties is meant to replace the intent and contents of the discarded statute whose cover page continues to give legitimacy to the post-CA II dispensation.

Called upon to pronounce the position of Interim Constitution, the single-bench of Justice Girish Chandra Lal retrieved the statute from the dustbins of extra-constitutional government where it had stayed discarded, dusted off its pages, and removed the grime that had settled over the Preamble and provisions of Article 1, Article 82 and Article 138. Unlike Justice Regmi's declarations that had appropriated the authority of the statute through its willful interpretation, the interim order of Justice Lal says that the supremacy of the supreme law of the land be honored even during framing of fresh laws. The political urgency perhaps emanated from the strictures of the court: A fait accompli has to be furnished to receive vacation order and to give a patina of legitimacy to extra-constitutional appropriations of four big parties.

There is a Nepali proverb, which can be roughly translated as a sigh of exasperation: God alone knows laws of Nepal. Sometimes even He must be shaking his head in befuddlement at the shenanigans of PEON that will go to any extreme to retain its paramountcy.

Disheveled playfield

With the international community solidly lined up behind the 16-Point Agreement reached between four big parties that gives them almost four-fifths majority in the Constituent Assembly II; the marginalized, the minority and the externalized segments of Nepali population have nowhere to go except to their constituencies. However, realities on the ground don't appear in their favor.

In the wake of devastating quakes that continues to shake much of mid-mountains, the affected people desperately want to get on with whatever remains of their lives rather than seek social justice, political dignity and economic opportunities. The Janjatis have yet to develop a coherent strategy of claiming their distinctive identities. A few Dalits, Muslims and Christians that can articulate interests of their community have discovered that tokenism fetches far more personal rewards in political marketplace than voicing of shared concerns. That leaves Madheshis: The only group that has nothing to gain and everything to lose if the PEON has its way in the fresh statute.

Madheshis too, however, have severe limitations in resisting a long-awaited constitution, no matter what it contains. After their cooptation into the PEON government of Madhav Kumar Nepal, they have lost all credibility at the grassroots. Divided along caste lines and ambitions of political personalities that vie to seek the patronage of the PEON in Kathmandu, few have the resilience to wage street protests that can stretch far longer than the first or the second Madhesh Uprisings.

The timing isn't favorable for awakening campaigns either. Between the monsoon floods and the winter shivers, there is a brief interlude of festive season when very few want to be dragged out of their reverie to shout slogans. Most Madheshi youth, in any case, want a passport to get out of the country at the first opportunity. Should someone dare to speak, there is always the state machinery to silence the person. A knowledgeable Madheshi scholar shares his fears in confidence, "I worry about you. Even CK Raut now has only two options: Become a Bedananda Jha or be prepared to be made into another Dr Laxmi Narayan Jha." For those unfamiliar with these two names, the regime had lured strident politico Bedananda with perks and position while the mild-mannered physician Laxmi Narayan was forcibly made to disappear from his clinic in Janakapur.

It seems Premier Sushil Koirala's bluster isn't vacuous: A status quoist constitution is underway come what may. Its future, however, will depend upon which way the Tarai-Madhesh turns. The hope has died. Now there is only fear. And fear can cause irrational and unpredictable behavior.
CK Lal

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