RAM KUMAR KAMAT
Referendum is one of the most preferred tools in democracy to settle thorny issues of governance. Although Third World countries lag behind in practicing this tool of direct democracy, the first world countries, where conducting elections more often is not considered to be an extra burden on the state coffers, are holding referendums more frequently. The debate of referendum has caught the people’s attention as we are going through the pangs of political transition. Opposition parties, especially the Nepali Congress and the CPN-UML, are saying that a single identity-based federalism could upset communal harmony, and, therefore, the issue should be decided only through a referendum.
The Unified CPN-Maoist has not opposed referendums, but it says it should be held on technical issues only and not the fundamental constitutional issues, which means it would not agree to hold a referendum on the identity question. Madhesi and other ethnic parties are also against referendums, at least on the identity question.
Those who favour referendums say in a country of minorities like ours, granting identity to certain ethnic groups could provoke communal tensions, and, therefore, the issue should be decided through a referendum. But the opponents argue that self-rule and autonomy are akin to basic rights of the citizens that ensure their meaningful political participation, which have been protected under international laws, and should, thus, not be an issue of referendum. The opponents also argue that inclusion and federalism are the spirit of the Comprehensive Peace Agreement and the Interim Constitution so any attempt to reject such provisions could provoke a backlash among minorities groups. If the provisions of the Interim Constitution are taken into account, Article 158 provides for referendum on the question of national importance. Although one can always argue that the federalism question is also a matter of national importance, and there should be referendum on it, but if we look at the provisions contained in Article 70 of the Interim Constitution that broadly talks of how the preamble or Articles of a new constitution should be passed, it is easy to draw a conclusion that the framers of the Interim Constitution did not wish matters of the constitution to be decided through referendum.
In fact, there is no mention of the word ‘referendum’ in any of the clauses of Article 70. As per the provision of this article, the first attempt should be to get the preamble or Article of a new constitution passed unanimously by two-thirds majority of the Constituent Assembly, and, if that does not happen, then it mandates to seek political consensus within a certain time frame. In case both these options fail, then provisions of the new constitution are supposed to be passed unanimously by a two-thirds majority of the house, and the attendance should not be less than two-third members of the CA.
Referendum is a matter of direct democracy, but if we look at our Interim Constitution, it is evident that the constitution focuses on representative democracy and not direct democracy. There are other practical difficulties to go for referendum. Nepal’s federalism debate has made it clear that the states in the hills would be carved more on the lines of ethnic identity while the states in Madhes would be carved out more on the lines of geographical identity. If a referendum is held on the question of Limbuwan or Magrat Pradesh or any other Pradesh in the hills, it is not clear who will vote-whether the people of the concerned region or the entire voters of the country?
The opponents of referendum cite the case of 1983 referendum held by the then King on the question of multi-party system when Panchayat won by almost 10 per cent votes, but the people revolted against the system within a decade. Referendum normally happens on binary questions but it is not sure that the country’s federalism questions can be sufficiently answered by way of ‘yes,’ ‘no,’ questions.
The dangers of a referendum is that if it is held on one issue, the demand for referendums on other issues such as monarchy, republicanism, federalism and secularism might also grow. If referendum is held on secularism, the overwhelming majority of Hindus might support a Hindu state but the question is if that will be justifiable. Can the majority impose its will on some basic rights of other citizens that are in a minority? Why should the issue of one or two Madhes Pradesh concern people of the hills? Why should the boundary of hill Pradesh concern people of Madhes? These are the questions parties supporting referendums need to answer.
Those who are arguing for referendum are saying that this is necessary to prevent simmering communal divide in the post CA dissolution period, but the real danger is that if the parties failed to prevent referendum on key question of constitution, it could only widen chasm between the so called ruling class and the marginalized communities and could further polarise society. It is the political consensus and not referendum that has settled some of the key questions in Nepal’s recent history and the same spirit should guide the political forces.