All constitutions born out of democratic processes resonate with collective wisdom. This involves a process in which differing ideas and views are pursued with due diligence through informed and sustained discussions and debates in order to find a compromise acceptable to the majority. Needless to say, the draft constitution, finally agreed upon by the four key political parties in the Constituent Assembly (CA), is also a compromise document. Understandably, accommodating the concerns of all those concerenced to the extent possible was a compulsion.  But one quick look at the contents of the draft and one gets the impression that, rather than incorportating the concerns of all, it only seems to have incorportated the concerns of the four major political parties to the extent possible. This has turned the draft consitution into a mountain of mess.

Prejudiced preamble

To begin with, I must confess that I am not a constitutional expert. Therefore, my knowledge and understanding of constitutional nuances might not be as convincing. However, even from a layman’s perspective, I found the draft constitution to be wanting in terms of fluency, flair and fairness of language. The language of the draft is loaded with punitive and vindictive overtones. It exposes an utter lack of legal knowledge, broad-mindedness and also the intellectual bankruptcy on the part of the drafters. It is not my intention to discuss the problems inherent in the draft. Many other writers have already done that. I have chosen only a few portions of the preamble part for examination.

The preamble is the essence of any constitution for it mirrors a constitution’s inner beauty, harmony and unity of purpose. It draws upon the past, connects it with the present and promises to build a peaceful, progressive and prosperous future for all. In sum, it seeks to connect the past with the present and the future. It does not condemn the past, however bitter it may be, or look like. Perhaps no constitution in the world or its preamble is vitriolic of its past, however unpleasant. Strangely, in the proposed draft constitution of ours, one can observe selective condemnation of certain aspects of our history and glorification of the rest. Owing to this, the preamble, apart from being ambiguous and repetitive reads as a biased document vindictive and contemptuous of the certain aspects of Nepal’s history.  For example, words like, ‘samanti’ (feudal), ‘nirankush’ (autocratic), ‘kendrikrit’ (centralised), ‘ektantrik’ (unitary), the statement ‘ending all forms of discrimination and oppression created by the feudalistic, autocratic, centralised and unitary state system’ have, among others, unnecessarily tried to cast an aspersion on the past.

Biased document

Similarly, the mention of the word ‘sashastra kranti’ (armed revolution) is an unwarranted glorification of violence. It sends a wrong message that change only comes through an ‘armed revolution’ whereas a constitution should have been a document of peace. The confusion deepens further by the conspicuous absence of the phrase ‘democratic pluralism’, the very soul of liberty, democracy and freedom. In its place appear, rather strangely, vague and controversial words such as ‘samajbad’ (socialism) and ‘dharma nirapekshyata’ (securalism) without establishing their relevance.

Furthermore, it is unclear whether the word seeks to promote democratic socialism or communist socialism—both have been much talked of but never practised in Nepal. No doubt, the inclusion of such words may have been the result of ‘compromise and compulsion’. The four major parties’ attempt to placate all is largely to blame for these distortions. But they need to know that a preamble which has a  ‘hate certain aspects of history’ overtone will hinder, rather than help formulate a progressive, forward-looking and inclusive constitution.  

It is equally important to understand that including unpleasant aspects of the past will fuel bitterness and encourage division among the people instead of leading to constitutional cohesiveness in the long run. I think a constitution drafted by the peoples’ representatives in the Constituent Assembly after a struggle of nearly six decades must rise above such a narrow and prejudiced mindset. It should strive to be inclusive, all-encompassing and altruistic. A thorough revisiting and fine tuning of these and many other phrases in the preamble in terms of their far-reaching implications, negative in particular, is therefore necessary for the country. The reading of the preamble should not give an impression that one is reading a badly written history book. Nor should it read like a political party’s election manifesto that promises everything under the sky for the people, only to be forgotten afterwards. It should make a balanced and fair assessment of history and also reflect the popular aspirations and expectations for time-suited changes. The public suggestions on the proposed draft have also demanded replacement of the aforementioned words and many other discrepancies in the draft. Hopefully, the CA will duly accomodate popular demands in the revised version of the draft

constitution.

Thapa is a former Chief of Protocol at the Ministry of Foreign Affairs ([email protected])