Nepal’s constitution: Respect the dissenters -By Gyan Basnet
Hopes that Nepal will have a new constitution by the May 27 deadline set by the Supreme Court have been raised with news that the major parties have agreed on all contentious issues. However, the agreement goes beyond the politicians. People from different segments of society are demanding more by way of identity, powers and rights. Most importantly, the Constituent Assembly’s deadline is only days away, and the final draft of the constitution has not yet been prepared. Several questions must be asked: Where is the opportunity for the people to have their say? Will the constitution not lack legitimacy if made in such haste? Will it survive for long?
Already some people are claiming that the deadline for the Constituent Assembly must be extended in order to secure a complete constitution. Others argue that the political parties themselves would have reason to claim a further extension if a draft at least is made available by the deadline. Any outstanding contentious issues could still be discussed and the complete constitution promulgated later. At this point some very important questions need to be considered: What, for example, is next if the assembly really does fail to provide a constitution by May 27? The state cannot go on in a vacuum. Should the assembly deadline be extended again, and, if so, on what basis?
Constitution making is one aspect of a nation’s multifaceted public affairs: it is a process by which the population is able to participate in determining its political status and in influencing its own economic, social and cultural development. The constitution-making process should involve serious discussion of conflicts, interests, preferences, and needs. It should be accompanied by massive efforts to involve the public before, during and after the drafting stage. Otherwise all theoretical and legal justification for the legitimacy of the constitution could be undermined.
Experience shows that where a constitution is produced in haste with minimal homework and insufficient effort to build consensus among society, the resulting constitution often turns out to be more a problem than a solution.
In today’s world, actual participation in the constitution-making process has become one criterion of the constitution’s legitimacy, and this is promoted now as both a right and a necessity. The effective participation of those affected by the decision-making processes and their right to have a say are vital. Whereas the functioning of the constitution lies at the heart of the political establishment, its making can no longer be confined exclusively to the domain of high politics and to negotiations among elites who may draft the text behind closed doors.
The constitution is not a thing to be decided upon by a few politicians in a hotel room. However, that is precisely what appears to be happening in Nepal context. The deadline for the assembly is fast approaching, but where is the time to be allocated for public debate of the constitution’s final draft? Should they not be given time to debate and discuss its contents? At present it seems highly likely that there will be insufficient time even for the lawmakers within the assembly itself to discuss the articles and sub-articles.
Decisions are normally based on reason and transparency, but in Nepal scenario there is a significant disparity in political and social power between that of the elite and that of ordinary citizens. South Africans were encouraged to participate in the constitution-making process with the slogan: ‘you have made your mark: now have your say’. The public made two million submissions over the final draft. Their comments and suggestions were widely debated and taken seriously before the final constitution was drafted. It gave the general public a sense of belonging, a sense of participation, and a sense of writing their own future. Where there is the right of Nepalese people to be involved the process and to say what they think?
Why extend the deadline? Firstly, a legitimate constitution cannot be written with such haste that it breaches the requirements of the democratic process. Nepal’s new constitution must be the embodiment of the hopes and expectations of their people: it should not merely define political powers but reflect the very soul of their society. Its drafting must follow certain principles and procedures, and it must be regarded as infinitely more significant than ‘black letter law’. Even in passing ordinary laws, the state has to follow certain rules, principles and procedures: producing a constitution is infinitely more demanding. The new constitution is going to impact on the fate of many generations to come. In view of that, are they taking the matter seriously enough? Should the people of Nepal not be allowed to debate on their future rights before the constitution is in any way finalized? The assembly certainly needs more time to address these issues.
Secondly, the constitution should not be a thing to be decided on only by a few leaders in a closed room. Its function will lie at the heart of the political establishment: it will define the framework and main functions of the organs of state, and set out principles governing their operation. Should there not then be time for public comment and discussion on its provisions? Is it not their democratic right actually to participate in the constitution making process?
The culture of last minute rushes to decide national issues among Nepalese politicians has to be entirely discouraged. It has happened many times before and should not be repeated again. Some technically qualified elite with a few politicians must not view constitution making solely as the legal and expert drafting of a contract. Rather, its conceptualization and practice should develop into an open-ended conversation between all members of the political community.
Thirdly, there is a strong feeling that the parties should move ahead in accordance with the verdict of the Supreme Court which barred any further extension of the deadline of the assembly. However, Nepal must always keep the national interest at the very center of their thinking as they go through the period of transitional politics. The national interest must be seen to be more important even than the court’s decisions and decrees. Their greatest need is to survive as a nation, united. No one should seek to limit the power of the people, and dialogue is the one way that can lead them towards true peace. It is, of course, important that judicial decisions are respected, but the supremacy of the desires of the people has to be maintained. In the name of separation of powers or respect for the justice system, they should not gamble with the fate of 27 million people. The assembly must, therefore, continue with its task, complete its mandate, and ensure a stable political future for their country.
Fourthly, there has recently been a pervasive demand for ethnic self-determination and ethnic federalism and there have been dissenting voices from different segments of their society over the recent agreement reached between the major political parties. Should all such demands not be addressed now through the political process? If the new constitution is to fulfill its purpose in setting a tone and establishing the identity of their country it must address these demands while maintaining social harmony and not engendering ethnic anger, suspicion, and resentment. No one must be ignored in the processes. All demands should be addressed through talk and through political processes. Nepal must not rush regarding this issue. There may need more public debates and dialogues among the different segments of their society.
Constitution making inevitably involves a tussle over the distribution, redistribution, and sharing of powers, but their resulting future constitution must become the milestone, the peacemaker and the tool that brings their war-torn society together: it must not become a tool that leads the society to even further conflict. Nepal’s federal constitution must address the identity of the entire population so that a confident nation may look forward to a stable future with complete internal harmony. Will the new constitution really offer the country a safe exit from the on-going crisis? Sadly, on the basis of current knowledge there must be a serious doubt. For that the assembly will almost certainly need more time.
Fifth, who is likely to benefit most from a failure of the assembly? This is an important question, which everybody should bear in their mind. There are many national and international elements, organizations and individuals who do not want peace restored in Nepal. They wish to use the opportunity to serve their own petty interests. These invisible elements stand to benefit most if the assembly is dissolved. Yet the assembly is the one body that can still highlight the problems that they are facing, give the people a voice, and become the platform for promoting the common interest of all their citizens. The deadline must, if necessary, be extended to defy the disruptive elements and to protect nation’s common interests.
Finally, the assembly is the only legitimate political body in Nepal right now. If it is dismissed without completing its task, an even larger political vacuum will have been created, and the political transition in the country further extended. It will do nobody any good whatsoever. There will be no winner – most certainly not the on-going peace process where the whole political spectrum that they have built for nearly six years will be completely confused. To go now for a fresh mandate is neither feasible nor practical politically, socially, or economically.
Most importantly, there is no guarantee that any new poll would bring peace to the country automatically. People have to be more pragmatic. They have to learn the lessons from their past mistakes, which is not something that they seem to be doing at present. It is time that they accepted that there is but one option left, and that is to address all problems through the present elected assembly.
The term of the assembly should be extended only if three conditions are met. Firstly, realizing the mistakes and reckless use and misuse of power by the politicians to date, the assembly itself should make a sincere official apology to the people for failing to complete the peace process and write a constitution on time. This could result in a general feeling of ‘responsible’ politics, and the people may once again forgive. Secondly, the political parties must before the deadline release at least a draft constitution that represents a consensus among all the different political and social segments: the remaining issues can be completed with sincerity later. Finally, the political parties must undertake to rise above partisan politics and abandon partisan interests for sake of the common national good. Most importantly, they must arrive at a common agenda and formal agreement on the various subjects of national interests.
The choice is theirs
A democratic constitution cannot be written with such haste that the requirements of the democratic process are breached. More hard work may be needed, more time to arrive at concurrence among the many different social segments. People need not rush. Just as Rome was not built in a day so the transition to a new constitution and the rule of law cannot be achieved overnight. The South African Constitution of 1996 is widely regarded as a model constitutional text, but it took over seven years to achieve the final consensus among that country’s political forces.
History and international practices show that any generation needs to make a sacrifice for the betterment of the coming generation. People of Nepal have already made many sacrifices, but I urge every Nepali through this article, in the interest of their nation and of securing rights for all in the future, to make one more. It’s now or never: the choice is theirs. People of Nepal must make sure that their children will not have to suffer like they have: that they will not have to participate in another revolution. People of Nepal must make sure that they can experience stable politics, and a stable democracy as part of a prosperous and proud Nepali nation in a proud Nepali country. Difficult times demand difficult measures, a deeper commitment, and a population that stays calm and sensible. Give the assembly a final chance to complete its task.
The functioning of democracy demands continuous discussion that addresses all dissenting voices. The Nepalese people have every right to know what is proposed and how they can challenge those proposals. The final constitution of Nepal must be recognized as people-owned. Otherwise the people will challenge its legitimacy and authority from the very outset.
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(Dr Gyan Basnet, who holds a PhD and an LL.M degree in International Human Rights Law at Lancaster University, UK, is a columnist, researcher in International Human Rights and Constitutional Law and an Advocate in the Supreme Court Nepal. Email: firstname.lastname@example.org)