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Bharat Raj Upreti/Constitution and electoral reform
According to Bharat Raj Upreti, the 1990 constitution
of Nepal is based on ownership rights, which brings
into sharp focus the question of inclusion, and
thus becomes the instrument through which to dissect
who owns the physical resources, the human resources,
and the nation itself – and whether, in
fact, anyone can claim to own these. Most pertinently,
the question presents itself: who owns the 1990
constitution? And, consequently, who is the owner
or manager of the government that has been formed
under its auspices? Beginning with these questions,
Upreti presented a review of the 1990 constitution,
with suggestions for improvements and recommendations
for electoral reform.
Exploring the question of ownership, Upreti
said that tribal leaders claim ownership of all
resources in their territorial domain, as do dictatorial
regimes, in which the dictator claims sole ownership
of territory, resources and human resources. Nepal
faced a situation of such hegemonic control of
the state during the Rana regime, which lasted
until 1950. However, questions of ownership remain
pertinent even in a democratic set-up.
The two basic ideas of democracy are: a) majoritarian
rule whereby one privileged class/group owns the
country; and b) rule by consensus where the government,
which represents all the people, is by the people.
Upreti said that consensual democracy is more
appropriate for Nepal, given its diversity of
ethnicity and deep class divisions. The first
kind of rule, where the government of the minority
governs in the name of the majority, works in
relatively homogenous societies.
In Nepal, though, a government of the minority
has ruled in the name of the minority and in the
interests of the minority even after democracy
arrived in 1990 under the present constitution.
The 1990 constitution, modelled on the lines of
the Westminster system, has failed to deliver
true democracy in Nepal, and has excluded large
sections of society in the years that it has been
operative. The degree of exclusion in Nepal’s
governance is startlingly represented in the fact
that under the electoral process mandated by the
1990 constitution, more than 60 per cent of the
votes are excluded from the government formation
process. The constitution also has no provision
for the devolution of power from the centre to
the regional to the grassroots level, which is
reflected in the fact that only 40 per cent of
the national budget is allocated outside the centre.
Presenting caste-disaggregated data on parliamentary
representation, Upreti said 41 per cent of the
population occupies 84.9 per cent of the seats
in parliament, while over 58 per cent has only
15 per cent of the seats. These figures show that
the current political system is structurally flawed.
Nepal has had the peculiar situation of parliament
being elected thrice but dismissed four times
in 12 years. This is a reflection of how governance
has been at the mercy of the whims of the ruling
elites, such that the prime minister of a highly
unrepresentative system, one in which power is
concentrated at the centre, has the authority
to dissolve parliament at will.
Had the judiciary been stronger, it may have
acted as a check and balance, but its weakness
is well reflected in the fact that for each of
the dismissals that have been challenged in court,
it has returned a verdict that conflicts with
the other verdicts.
In some other countries that have suffered a democratic
deficit, governments have been known to take ameliorative
measures, but this did not happen in Nepal. Upreti
recommended that since the structure itself was
flawed, Nepal needed a constitutional revision.
Whether a complete overhaul was required or whether
it is a question of reforming the existing constitution
is an issue that needs to be debated. The modalities
of the debate are not of supreme relevance as
long as it ensures that the final text guarantees
consensus democracy. His suggestion was that the
debate be carried out in two stages, the first
focussing on arriving at a consensus on the basic
principles, and the second on whether the constituent
assembly should be elected or selected. He proposed
that the South African example could be a possible
model.
Upreti said that the monarchy in the present
system had failed to play a ‘cementing’
role, and therefore a new system should be devised
that combined the monarchy and permanent institutions
of an inclusive nature. Institutional inclusion
could be achieved as it had been in South Africa,
Sri Lanka and Switzerland, through a system of
proportional representation. He ended saying that
it is important to enable the creation of inclusive
institutions through electoral reforms.
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