E-Kantipur

As the Constituent Assembly appears to fail again in completing drafting a constitution even after a second extension of its term that ends on August 31, restless Nepalis have begun to discuss different options for completing the writing of a new Constitution.  MIREST Nepal organised a public discussion on the topic on August 22 in Kathmandu. It will be fruitful to evaluate different propsosals based on ease and difficulty of implementation, consequences, and probability of delivery of a constitution.

The first option is to extend the term of the CA again for three months. This can be done easily.  Most of the political parties represented in the CA prefer this option as it does not break the current balance of power among the major political parties.  The incumbent CA members may not object as they will continue to receive status, resources and other privileges. The consequence of this option is that the process of repeated extension and non-delivery has eroded the legitimacy of the CA, political parties and leaders and even democracy and the democratic process itself. A major shortcoming of this option is that there is no guarantee the extended CA will complete the constitution writing process because the same dynamics that prevented the CA from completing the process may hinder again.  The belief that even the extended CA may not be able to deliver is a major reason why alternate options have been proposed.

An alternate option that is often discussed is that the CA should be dissolved and new one should be elected with a fresh mandate. The idea itself is not bad in principle but is probably the least practical.  If proponents have proposed this option because the CA is taking a long time to draft a constitution than the publicly announced date, this option is not a solution as it will entail a longer process. Several months are required to prepare for election.  Time has to be allocated for campaigning for the election. The election will incur a huge resource cost as well.  Likewise, the new CA will have to be given some time, perhaps at least two years. But the more relevant and salient question is who can guarantee that the new CA will deliver a constitution?  After all, many of the leaders will get re-elected to the new CA. Even if new members get elected, they will operate under the same Nepali political culture, conditions, structures and dynamics. 

It allows us to think through the option if we remember two things about democratic constitution writing and representative process. First, constitution writing, especially through a democratic process, is a lengthy process and many countries have taken more than three years to complete the process. Second, elected bodies generally are given around 4-5 years long tenure.  In that sense, the current CA as a representative body can be argued to have not date expired politically yet.  The legitimacy problems has resulted from shortsightedness of the political leadership. They raised expectation unnecessarily by declaring the Constitution will be written in two years or in extra extended three months.

A major reason for the delay in writing the Constitution is the hunger for power among the political parties and leaders that has resulted into precious energy, time and resources spent on making and unmaking governments in the CA—which is both a legislature and a body meant to write the constitution—instead of deliberating and forging agreements on constitutional provisions. The power politics is not going to go away soon in a patronage polity like Nepal where all political parties and leaders clearly perceive that being in power matters as people support leaders who can distribute status, jobs, resources and provide security. To address this problem, a proposal to form a national government composed of either “neutral” experts or political leaders of smaller parties whose ability to use and abuse state power for partisan interest will be less has been mooted.  The hope is that the formation of such a government will prevent excessive and petty power struggle and allow the CA to complete its task of completing the constitution writing process.  This proposal is also a good idea but is probably not feasible.  The political parties and leaders are unlikely to agree to a proposal that takes power away from their reach.

Options beyond the CA were also discussed.  Writing the Constitution under a presidential regime was also proposed.  This option is not entirely impossible if situation further deteriorates and a section of the influential political, economic and social class begins to support it, especially if a constitution does not get completed in the next three months. A constitution that comes through such a process will not be legitimate and will probably not be accepted by a large segment of the population, including many of the

political parties.

The proposal to divide the current CA into two houses, which was the least discussed, is more attractive as well as viable.  It can change the mechanism and dynamics in the CA, permitting to break the current impasse. The idea is to divide the current CA into two houses. One will write the constitution and another will operate as the legislature. The legislature will involve in the business of making and unmaking of governments and other regular legislative business while the separate constitution writing body will complete the new constitution without getting tangled and disrupted by the crude power struggle that has been the hall mark of Nepali politics.

The constitution writing body can focus solely on the task of sorting out differences and preparing a constitution that is acceptable to the wider society.  Hence, this mechanism will have a higher chance of completing the task of writing a constitution. The political leaders should be less averse to this proposal as those interested in power politics could remain in the legislature and continue to harbor and maneuver to attain power. However, this proposal is the least discussed and as such may not be in the radar of the top political leaders and others who can influence them. If the proposal is better than other options discussed, then media and other organizations and agents should probably initiate further public debate on the proposal. 

Lawoti is the author “of Federal State-building: Challenges in Framing the Nepali Constitution,” 2009, Bhrikuti Academic Publications

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