Implement 1990 Constitution to end Nepal crisis
by Dirgha Raj Prasai on 06 Jun 2012 4 Comments

The term of the Constituent Assembly ended at midnight of 27 May 2012, with failure to promulgate a constitution. This ended the relevance of Prime Minister Baburam Bhattarai’s cabinet, the presidential apparatus and all elements formed under the interim constitution of 2006. The President and Prime Minister, without constitutional mandate, are legally debarred from exercising any constitutional right. Despite this, the so-called President Ram Baran Yadav designated Baburam Bhattarai as the acting prime minister. How can Ram Baran Yadav who has lost his own position direct Bhattarai to continue in office as acting PM?


Baburam Bhattarai is automatically relieved of his position as prime minister and member of the Constituent Assembly with the dissolution of the latter. Despite losing his constitutional status, Bhattarai has announced dates for re-election of a new Constituent Assembly in November 2012, something for which there is no legal provision, and which requires the consent of all political parties (two-third majority of the CA was necessary before the expiry of its term).


The Constituent Assembly failed to promulgate the constitution within the stipulated time span of two years. Its term was repeatedly extended and the work of drafting the new constitution could still not be completed in four years time, climaxing with the dissolution of the Constituent Assembly. With their failure to draft a new constitution, party leaders betrayed the nation and the people.


The interim constitution 2006 that was introduced for the management of the Constituent Assembly has no meaning after the dissolution of the latter. The interim constitution 2006 stands automatically dissolved as the new constitution was not drafted in time. This means that the 1990 constitution stands automatically revived.


Nepal Students’ Union founder-coordinator, Nepali Congress leader and veteran advocate Devendra Nepali wrote in a daily newspaper, “If the interim constitution 2006 fails to draft a new constitution then it will automatically dissolve and become defunct. The existence of the political parties was accepted as per the 1990 constitution; in this sense the 1990 constitution is seen as the legal parent of the political parties. It was established by the 1990 constitution viewing the people as sovereign. The dissolution of the interim constitution will automatically revive and activate the constitutional monarchy, multiparty parliamentary system and all other organs and institutions under 1990 constitution. It is fallacious to posit a nation without a constitution when the legality of the 1990 constitution revives.”


Maoist leader C.P. Gajurel opined, “'Baburam Bhattarai is not a member of the CA, so he cannot continue as PM.”


There are abundant examples round the world to establish that when an interim constitution collapses, the previous constitution (of 1990 in the case of Nepal) is automatically revived.  After Indonesia’s independence in 1949, elections to the Constituent Assembly were held. But the failure to promulgate the new constitution within the stipulated time span compelled the country to revert to an old constitution, which was then suitably amended to serve their needs.

In Pakistan, the Constituent Assembly was elected and for five years it dabbled with the work of drafting the new constitution inconclusively, till they reverted to the 1935 constitution drafted by the English to announce fresh elections. The constitution finally came through the newly elected parliament.


In Britain, the republic system ran from 1649 to 1661 and collapsed. After 11 years, the monarchy was reinstated with the constitution and system that was prevalent during the days preceding the republic. In Spain, the republic system was introduced in 1936, but in 1969 the monarchy returned along with the old system.


Likewise, Cambodia became a republic in 1970 but in 1993 the people chose the royal institution and reinstated the law and constitution preceding the 1970 revolution. Hence, the dissolution of the Constituent Assembly in Nepal means the revival of the 1990 constitution. The parliament abolished by the Nepali Congress-led government was reinstated four years later after an agreement with the King on 24 April, 2011. Why shouldn’t we revive the 1990 constitution as it frees the nation from current crisis?


The current chaos results from the maladministration of the political parties after they misused the parliament that was reinstated after an agreement with the King, ending the people’s uprising of 2006. Nepali language was established as the common language of all ethnic groups and protects the numerous mother tongues. Anyone who does not understand this truth will not understand Nepal’s nationality. This is why the leaders who came to the fore after 2006 failed.


On 27 May 2008, the then Home Minister Krishna Sitaula, who was not even an MP having lost the election, stood inside Parliament to declared a republic. This was an unconstitutional act in itself. An individual having lost the election and not being a member of parliament has no right to participate at a parliament meeting. The Nepalese people have no wish to listen to or look at the faces of leaders from the Nepali Congress, UML, Maoists and the Madhesi parties. The 1990 constitution has regained full legitimacy; we must use it to form an inclusive cabinet that will resolve the current crisis.


We must bring out a list of the names of Prime Ministers, ministers, secretaries, general directors, project chiefs, contractors and businessmen who embezzled huge amounts of money from the state treasury after 2006. The Commission for Investigation of Abuse of Authority (CIAA) must be directed to arrest them for appropriate action. The seized money should be nationalized. The Constituent Assembly Members including the irresponsible Speaker Subash Nembang should be punished for taking remuneration and using all facilities and benefits and failing to perform their duty; they must refund the money to the public fund. In Haiti, a strict form of punishment was introduced to discourage corruption when the nation plunged into excessive corruption.


Hence some suggestions:

(1) The state facilities given to parliament, Constituent Assembly, and cabinet, as per interim constitution 2006, must be returned to the state. The money collected from the sweat and blood of citizens was used for a certain purpose which went unfulfilled. It should be returned to the state, or in future it will be difficult to control the activities of criminals.


(2) A law must be passed debarring the members of the parliament, Constituent Assembly and the cabinet from contesting the forthcoming general election, and for five years from any election.


(3) All facilities, decisions, including Citizenship Act, that have been a burden on the nation and introduced after the implementation of the controversial interim constitution must be repealed.


(4) Foreigners must be prohibited from spending or distributing excessive amount of money in the country. The state must take control of the international NGOs and their funds. The state must control such foreign economic support and spend it scrupulously, for management of which a separate body can be created at the Ministry for Local Development. In this way, foreign activities can be checked and their intervention stopped.


Nepalese people do not want any kind of communist authoritarianism; they want full democracy, political stability, peace and good governance. Nepalese people no longer want the unconstitutional rule of the so called larger parties, Maoists, Congress, UML, Madhesi.


With the demise of the Constituent Assembly, the constitution of 1990 constitution is restored automatically and Nepal’s royal institution, Nepal Army and people of Nepal are protectors of Nepal. The monarchy was pivotal in integrating Nepal, establishing democratic and equitable society at par with the modern world.


Only this option will open the doors for political resolution in Nepal. Nationality is a sensitive issue and will be difficult to re-establish once it rolls down the slope. In the past, Nepal was defended at the joint initiative of the King and people. Now that thread of unity has snapped. To rescue this holy land from an imminent dark future, all patriotic forces, the Nepalese monarchy, and the people, the Nepal Army, court and the chief organs of the State must all unite and defend the nation from chaos.



The author is a Nepali patriot

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