Learning from their Mistakes? What next for the Constituent Assembly in Nepal?
The initial mistake of assigning a dual role to the Constituent Assembly has led to a continual sidestepping of the main issues, in favour of government formation. This musical chair of government formation indicates the lack of accountability in Nepali politics. Constitution making in a post conflict society requires commitment, understanding, compromise and most importantly a desire for peace and nation building from all the concerned parties. Thus, given the critical importance of the situation, it is imperative that a compromise on power and other issues be reached to allow the Constituent Assembly to draft a constitution that matches the expectations of the people.
The timeline of Nepal’s conflict show a constant recurrence of pivotal moments. It has been 21 years since the re-establishment of a multi-party democracy; 15 since the starting of the ‘People’s War’ by the Maoists; 10 since the massacre of the erstwhile royal family; 5 since the popular protests paving the way for the ‘safe landing’ of the Maoists and the signing of the Comprehensive Peace Accord and 3 years of a Constituent Assembly and a republican Nepal. Come May 28, and it will be exactly a year since the extension of the 601 member ‘jumbo’ Constituent Assembly.
However, not all is well in Nepal. At this critical juncture, it stands, 2 days away from the deadline, without an expected constitution and no proper agreements on any of the critical issues. As the primary work of drafting a constitution has not yet been completed, there are talks of a further extension of the extended Constituent Assembly. Besides raising questions of legitimacy and constitutional ethos, there is a serious lack of introspection in the entire exercise. The focus is surprisingly still on control of power, as seen by the posturing going on between the Maoists and the Nepali Congress, for the formation of a new government.
This undue focus and debate on government formation, shows the mistakes that occurred with the establishment of the Constituent Assembly as a dual body; a dual structure of constitution drafters and the legislators. It displayed the lack of statesmanship among the leaders, and the fear they had of the emergence of a parallel power structure. Even economic prudence can no longer be held to be the reason behind the formation of a single body, given the astronomical costs incurred by the Constituent Assembly. This duality of the Constituent Assembly has thus been one of the most significant contributing factors to the continuing uncertainty in Nepali politics.
It is necessary to understand the importance of this constitution to the current Nepali society. It is not being drafted, because of an absence of any previous constitution, but because of the changes that have occurred in the last 20 years. Expectations are high and unlike previous movements, the demand is not only democracy, but the creation of identity. This exercise of constitution drafting has the idea of nation building attached to it. Issues of language and ethnicity coupled with demands for federalism clearly show that the main issues are still issues of social justice, equality and the re-definition of what it means to be a Nepali. It is the first instance, where the constitution of Nepal is being drafted by the people’s representatives. The variety of representation shows the diversity of views in Nepal, and thus highlights the necessity of compromise, so as to accommodate differing views on the writing of the constitution. Violence might have ended, but there is continual conflict and this has been on an upward trend. Constitution making in a post conflict society requires commitment, understanding, compromise and most importantly a desire for peace and nation building from all the concerned parties. All of these factors go into creating a constitutional design capable of laying the foundation of an enduring constitution.
Instead of a proper management of these conflicts, the constitution writing process has however been clearly hijacked by the leaders of the main political parties, where issues have become pawns in the game of government formation. It is a shame, that there has been neither a clear stance on principles nor coherent viewpoints even by leaders of the same parties on critical issues like federalism, language and reorganization of administration. This confirms the callous attitude towards the entire process, which means that the entire exercise is being seen in a short sighted view of writing a ‘makeshift’ constitution, instead of utilizing it as the opportunity to create a solid foundation for an enduring constitution and the building of a better State.
It is therefore absolutely vital to understand that the expected constitution not only needs to address these emotive issues but also convince the citizens with the decisions it takes. This requires appreciation of the issues, and a proper study of the possible implications. It is here that the Constituent Assembly and the political parties have failed the country. It is not to say that no work has been done. Thematic committees on different issues have created draft reports and have initiated debates on it. However contentious issues have become huge roadblocks. Compromises reached in these committees have been rejected by the leaders of the parties. It is quite apparent that the Constituent Assembly has become relegated to a secondary body. It is clear that these committees do not wield real power. Thus, all the work done has reached a level of stagnation. Further, there is hardly any communication to the masses about the progress report of the different committees. Thus, there is a seeming exclusion of the elected themselves from the process of constitution drafting.
Public debate, on the other hand is vibrant. Although the euphoria of May, 2008 is absent, there is a growing realization of the need to seize the opportunity lest it becomes too late. Hence, there is growing pressure on the politicians. However, there is a clear lack of parameters to debate upon, as the Constituent Assembly has failed to take the debate to the grassroots. Most issues have already been trivialized with consensus supposed to be the only norm. The media is doing a relatively good job of keeping the people informed but their focus is more on day to day reporting, and less on issue engagement and pressure building. The recent usage of social media for demonstrations is a welcome advancement. However, this is not enough to take the debate to the masses. This vibrancy in the public domain is yet to gain a proper direction, with propaganda and quantitative rhetoric rather than qualitative merit based debate ruling the roost. Thus, even the public has been excluded from this process.
However, instead of focusing and addressing these issues, the issues of power and army integration have been made the main issues. The average age of immediate post conflict constitutions worldwide is abysmally short and these are often the result of mismanaged post conflict situations. Thus, the issue of management of the Maoist combatants is no doubt important, and a lack of appropriate solution despite the passage of time and UN involvement is problematic. However, this issue is part of the political process and should not be used to justify the lack of progress on other unrelated issues of constitution drafting. It is not inextricably tied to constitution drafting and cannot be used to justify the delays in the entire process. It only serves to take away the focus from the main issues of the Constituent Assembly.
What is further worrying, in the framework of the debate is the lack of a clear model or structure from any of the parties post any possible extension of the Constituent Assembly. It is clearly a case of ‘wait and see.’ Further, the idea of a President’s rule is being seen as a distinct possibility. Besides being of questionable constitutional merit under the interim constitution, it neither aids constitution drafting nor conflict management. Thus, constitution drafting has to be separated from the politics of government formation.
The legitimacy of the current Constituent Assembly derives from the people and their movement. It is this aspect, which has to be inducted into the political parties, especially given the complete lack of accountability and responsibility. It is too late to satisfy the Nepali people with a symbolic constitution or a constitution without incorporating the contentious issues. This time, issues of ethnicity and language, gender and discrimination, resources and reservation are at the fore. While, it might have been easy to raise this rhetoric earlier, it is too late now for these measures. The only way out is to reach a political compromise on the issue of power and make constitution drafting the sole focus. This should be accompanied with a proper address on the expectations of the people with provisions for the systematic implementation of these various demands after appropriate study, debate and consideration.
Further given the numerous conflict of interest of the Constituent Assembly members, especially with the power of re-nomination, it is perhaps time for the judiciary to step in and set a final fixed time limit, failing which another way forward should be sought. The country cannot continue carrying the burden of a non- functioning Constituent Assembly.
