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Blast from the past

Bipin Adhikari
The Kathmandu Post,22 April, 2009
Source: The Kathmandu Post

Those who have read Shakespeare's classic Julius Caesar will time and again remember the famous expression of Cassius, a nobleman, speaking to his friend, Brutus, "The fault, dear Brutus, is not in our stars; But in ourselves, that we are underlings."

Cassius was trying to persuade Brutus, a friend of Julius Caesar, that Caesar must be stopped from becoming emperor of Rome in the best interests of the public. By this famous expression, Cassius meant that the reason they were underlings (not in a high position) was not because of their astrological charts, but it was their own fault.

This fault has relevance, no matter what the subsequent development in the story of Julius Caesar showed, in the ongoing political scenario of Nepal. Political leaders, civil society activists and induced intellectuals are at a dead end because the Constituent Assembly (CA) does not show any signs of a smooth delivery, while the slogans of Mass Movement II are disappearing fast.

It appears that the CA, which was supposed to produce the first constitutional draft by today, is also looking forward to see a "Quicksilver" typical of Greek mythology (and Nepal's all political crises) to come around, define their inadequacies, sort out their perceived problems, and offer a draft constitution that satisfies him whether it solves Nepal's problems or not. It needs no further elaboration why these actors are "underlings".

All of a sudden, the government, which had been sleeping over the Interim Constitution as to the formation of the State Restructuring Commission for the last 11 months, has finally formed it without even discussing the matter with its coalition partners. It is not clear how it is going to make use of the commission now, if the purpose is not to disingenuously delay the ongoing CA proceedings, which is at a very critical point in time now. The Committee on State Restructuring and Allocation of State Power (CSRASP) is already in existence in the CA. It is under pressure to submit its concept on state restructuring which is already due.

Apparently, pending the commission's report, the CSRASP cannot send its concept paper to the CA plenary discussion anymore. This also means that the concept papers to be submitted by all other thematic committees, including the Committee on the Determination of the Form of Government, are going to be a very procedural compliance because they cannot do the job meaningfully unless the State Restructuring Commission submits its report, and the CSRASP takes a position on it.

Meanwhile, the commission will have to work in a very hostile environment. The Nepali Congress has already questioned it as an attempt to sideline the partners of change. Besides, the credentials of the country, which was declared a federal state by means of a constitutional amendment alone, has been seriously challenged by a small communist party, which is said to have significant nationalist sympathizers to back it on this issue.

The National People's Front led by Chitra Bahadur K.C. has submitted a memorandum to the president and street actions are being pursued throughout the country. He has opined that it would be better for Nepal to continue with the unitary structure but with devolution of state power to meet the aspirations of the people. Needless to say, the Maoist government is on "wait and see" before it responds to them. At the minimum, this group will create problems for the federal state if the issue is not put to a referendum. Additionally, if this issue qualifies for a referendum, then why not put the issue of the abolition of the monarchy and declaration of a republic to a vote too?

What has tortured the people of this ancient country is the inability of the leaders to reflect on the voice of the common people. It is definitely the right of the people of a certain nation to decide how they want to be governed, the nation also has reasons to maintain its integrity and react when ambitions run high on the chassis of the right to self-determination.

Constitutional concepts of democracy, constitutionalism and the rule of law, or of federalism, and protection for minorities are not just interrelated, but also balance each other. One should not ignore the fact that the various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to the existing state and the stability of relations between sovereign states in the region.

The circle apparently is vicious. A democratic constitution cannot be written for a nation, nor can one be written in haste. One has to go beyond to realize guarantees for a continuing, open and inclusive process. This is the time that leaders of the present generation understand it.

Prime Minister Prachanda must be reminded of his predecessor Prime Minister Jung Bahadur Rana who was on a tour to France about 30 years after the death of Napoleon Bonaparte who rose to prominence under the First French Republic, and later promulgated the Napoleonic Code. Contemptuous of both Roman law and customary French laws, Napoleon had appointed a consul to propose legislation, which in turn had appointed a commission to do the job. When Jung Bahadur visited Paris in 1850, the code had already passed 46 years.

Amazed by the codified law and its experiment in France, Jung Bahadur immediately formed a jumbo Kaushal (the corrupt form of the French term consul) to kick off a similar codification process. As a matter of fact, he was able to give the Muluki Ain to Nepal almost 46 years before the Germans adopted their civil code in 1900 following the wide impact of the Napoleonic Code on the rest of Europe. As in the case of the Napoleonic Code, the Muluki Ain also drew heavily on previous sources of law. It was intended that it should be interpreted in the light of its own provisions and definitions.

The Muluki Ain was the biggest of all the revolutions in Nepal in terms of constitutional jurisprudence -- without causing any deaths or disappearances. Neither the content of the code or the Ain, nor the idea of codification itself, marked a total break with the past. The transition was, therefore, smooth and sustainable. As a source of law, both the code and the Muluki Ain became super eminent replacing the courts and the king with a concise body of rules and principles. Jung Bahadur was definitely a dictator, but he developed a taste for the rule of law, and practiced it based on the experiment of his generation. This is not happening in modern Nepal.

Let Nepal's leaders be reminded of what Napoleon said, "My true glory is not to have won 40 battles... Waterloo will erase the memory of so many victories. But... what will live forever is my civil code." It has lived because his successors, as he himself, were not deeply into astrology as the ancient Romans were.

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