DRAFTING OF THE NEW CONSTITUTION: WHERE DID WE GO WRONG?

This article aims to look at how the process of drafting the new constitution for Nepal has been derailed which is proved by the public acknowledgements of the leaders expressing their inability to write the constitution by the proposed deadline of May 28, 2010. This article does not look at other socio- political considerations regarding the empty promise of making a ‘New Nepal.’
The idea of writing a constitution through constituent assemblies represents a truly democratic way of fulfilling the aspirations of the citizens. As the elections to the Constituent Assembly also had provisions for a proportional representation, it was the most representative elected lot in Nepal’s history. It was also charged with a historic duty; to right centuries of wrong, to bring peace and usher in an era of equality, not only in token service but in true spirit. It was a historic occasion and truly the expectations were high in the immediate aftermath of the elections.
The initial hiccups of government formation perhaps showed the way and it has been mostly downhill since then for the 601 member Constituent Assembly of Nepal. A draft has been prepared minus several important aspects and critical issues are still unresolved. Even now, the focus is on a government change, with the drafting seemingly a secondary task. Where then, did we go wrong?
The first and perhaps the main problem that arose was the dual function of the Constituent Assembly as a legislature and a body for drafting the constitution. This should have been addressed right at the beginning itself. However, as a result of this, we have the Constituent Assembly working more as a normal legislative body. What has not been recognised is the unique position and privilege that has been afforded to the politicians to shape the lives of generations to come with a better constitution. Governments have been formed and changed, alliances broken and merged again without any respect to this crucial function of actually getting down to writing the constitution. What could have been, and in all honesty, should have been done was to have different people elected to the two bodies in the initial elections so that the Constituent Assembly could focus solely on the work of writing the constitution. The dual role of the Constituent Assembly to govern as well as write the constitution has been a major stumbling block.
Next, we come to the issue of independence. The Constituent Assembly seems to have no independence at all, especially when it comes to dealing with sensitive issues like federalism and issues of identity markers like language and reservation. All the decisions are made by a group of leaders from the different political parties. As such, this results in a complete disrespect for the will of the people and an imposition of a compromise view of a few political leaders. “Why need the Constituent Assembly when all the decisions will be made by a coterie of leaders as a last minute compromise “This situation is especially worsened when there are no clear policy lines of the different parties with regards to such sensitive issues. Thus, lack of a clear guiding policy with no independence has hampered the work of the Constituent Assembly.
The jumbo size of the Constituent Assembly has come in for much criticism. However, considering the scale of the task, the number is not too large. The problem however has been the mismanagement of these numbers. When issues regarding the new divisions of the country have been aprt of active discussions, there hardly seems to be enough willingness on the part of the Constituent Assembly members to explore newer options or go for a larger public interaction and collection of opinions. Newer ideas have not been encouraged and neither have Constituent Assembly members thought outside the party lines. Besides, many of the members do not attend the Constituent Assembly regularly with the list being headed by the top leaders of the different political leaders. There seems to be a serious lack of intent. This lack of intent is seen in the critical issues like language, federalism, distribution of resources where there is lack of a proper background check as well as a lack of alternatives. Thus, issues which need clarification have ended in a stalemate with no clear solution in sight.
In Nepal, there has always been a habit of getting things done at the last moment. Although, the job gets done, it results in a less than average end product. An example could be the Interim Constitution, which is supposed to have been drafted in less than 15 days and as such is a fractured mosaic of different constitutions around the world. However, it is not specific to Nepal and as such; there has been a need to have a better constitution which tracks the aspirations of the Nepali people.
The Constituent Assembly has representation from all the different walks of society along with experts on law, gender and other specific areas. It has the requisite number and required expertise and experience. What it needs however is complete independence and a clear focus and the support of the different political parties. Solutions should be found out on critical issues, without wasting time. Attempts to unravel controversial issues through different perspectives should be made. The goal is the drafting of a new era constitution, one that will set the country on to a better path; one that is populist as well as practical, and one that is able to lay the foundations of a better Nepal. If this does not happen then the next six months will still not be enough for a new constitution and the division in Nepali society might just become irreparable. The need for consensus, political will and clarity leading to action in a positive direction has never been more. Hopefully Nepali people's resilience and the wish for peace along with increasing political realisation and awareness will spur the political establishment and the Constituent Assembly to action.