From Nepali Times, ISSUE #607 (01 JUNE – 07 JUNE 2012)
The Constituent Assembly provided an example of how not to write a constitution
Voluminous crocodile tears are being shed among Nepal’s political class and civil society regarding the unceremonious demise of the Constituent Assembly. Many internationals are mortified by the turn of events, seen as one more proof of the chicanery of our political leaders.
And indeed the loss of four years has been nothing less than tragic, a time that should have been spent on healing, rehabilitation and reconstruction. The CA was a disaster for the way it played with the people’s hopes and aspirations and emerged as a divisive arena rather than a place of compromise.
While decrying the waste of four long years, there is an alternative narrative on the eclipse of the CA. If what we wanted was a good, representative constitution which promised political stabilty, economic growth and inclusion, we may have been saved from the sad fate of continued instability and chaos.
The primary blame for the failure of the Assembly, naturally, goes to the UCPN (Maoist) as the largest party in the CA, which has been part of the state establishment of Nepal since coming above ground in 2006. The party chairman, Pushpa Kamal Dahal, manipulated the House for his own purposes, and his radical populism pushed the other parties towards unhealthy compromises which would have made it into the final document.
This entire process of constitution drafting for nearly all of the four years was conducted under duress, with the Maoist threats of revolt (Kharipati and Palungtar declarations), the intimidation of the polity, and the fact that the drafting was made under the shadow of the gun � the cantonments with their combatants were under Maoist command throughout the constitution drafting until a couple of months ago.
The rules of procedure of the Constituent Assembly itself made compromise difficult, as the thematic committees required only 50 percent majority to send their reports to the plenary, where only the two-thirds provision was to kick in. This ensured that there was grandstanding rather than a search for compromise from the start. The fact that the CA and the Legislature-Parliament were made up of the same members fatally affected the spirit of compromise. As the public well knows, the CA stopped being a House of 601 after its term of office was self-extended at the end of the mandated two years, and the negotiations entered the windowless room where 15-20 leaders called the shots.
The Constituent Assembly presented the darkest example of a representative body made toothless from the point the discussions entered the ‘dispute resolution sub-committee’ chaired by Mr. Dahal. Already, the original provisions of countrywide public consultations had been done away with and the calibrated procedures within the CA to promote debate and discussion had been truncated to near-nothingness.
On the last day, 27May, Sunday, were the Constitution to be promulgated, it was important for the 15 May compromise on the critical matters of governance (mixed presidential/prime ministerial), elections (mixed direct/proportional) and judiciary (setting up of a constitutional court) to be drafted and circulated. And yet, neither the CA members nor even the Chair of the Constitutional Committee were shown the draft. This was constitution writing as a sham, all show and no substance.
This is the kind of farce the constitution writing had descended to, with a handful of party leaders sitting across the sofa table, believing that they could decide on the fate of the entire country. For sure, the Constituent Assembly could not stand up to the high democratic values of the People’s Movement of April 2006. This was constitution writing where the parties would agree to sign on the dotted line out of sheer fatigue and embarrassment.
In any case, we were set to be given a constitution which promised a mixed system of governance, where a president would have a supposed constitutional position but be directly elected from the people, while the prime minister would be chief executive, but be indirectly elected through the House of Representatives. This system was guaranteed, in the Nepali context, to promote authoritarianism which the people would have had to fight for years to reverse.
The constitution, if promulgated according to the 15 May agreement, would have introduced a mixed election to the House of Representatives where 55 percent would be directly elected lawmakers, while 45 percent would be through proportional representation. This high percent for the proportional system, while promoted as a tool for inclusion, would have weakened the representation of the people at the central legislature, as well as promoted authoritarianism. Given that the identity movements of hill and plain have gained such potency, one can expect much more ‘proportionality’ in the selection of candidates by the parties, and a lower figure for the proportional list would have been advisable.
The agreed-upon provision for a Constitutional Court was not in itself an undemocratic act, but in the present Nepali context it would have left the Supreme Court isolated in perception and spirit. Given the importance of the Supreme Court in upholding the rule and law in recent times against political parties intent in destroying institutions of state, it is incredible that the NC and UML agreed to this provision.
On the all-important matter of state restructuring, there was actual movement and a spirit of compromise in the last day of life of the Constituent Assembly, in the meeting between the ‘janajati caucus’ and the political parties. But everything came to naught as afternoon turned to night. It is not clear who pulled the plug, some say the Madhesbadi forces, others point to the Maoist ‘establishment faction’ of Chairman Dahal, which did not want the Vaidya faction create a ruckus were the House to be called.
For whatever reason, the Constituent Assembly was not even floodlit during the late hours. In ignominious retreat, individual members of the CA wended their way home even as the television journalist kept mournful vigil.
Prime Minister Baburam Bhattarai, however, had other things on his mind. Without consulting many of his coalition partners, without resigning from his post as required by procedure and decorum, he called for elections on 22 November. He was clearly out of line, and the job of the polity is now to rescue the elections from the clutches of its unhealthy provenance and convert it into a healthy, practical, principled exercise.
Looking ahead, the plan would be for the formation of a national unity government made up of a few trusted politicians who can concentrate on good governance and organising a free and fair elections. That elections, ideally, would be for a Parliament with membership below 300. Such a Parliament would set up a constitutional advisory body which would mine the mountain of material including the constitutional debates and conclusions in the Constitutent Assembly. It would provide a draft constitution to the Parliament which would be debated and adopted within six months to a year.
On the supposed road to prosperity and stability, Nepal has wasted too much time in chaos and uncertainty. Sadly, the term of the Constituent Assembly will be relegated to the latter era. We were almost saddled with a Maoist-inspired document and were about to go for it out of sheer fatigue and inability of the democratic forces to be true watchdogs for the people.
The experience of the CA would provide a how-to and how-not-to guide for the writing of the future Constitution of the Republic of Nepal.