Core Questions Confronted in Constitution Making

<br>- Ganesh Datta Bhatta

Jan. 10, 2011, 5:45 p.m. Published in Magazine Issue: Vol.: 04 No .-14 Jan. 07-2011 (Poush 23,2067)

Seven months’ extended time of Constituent Assembly has already passed. The caretaker government has been ruling over the country for last six months and the legislative parliament or constituent assembly is merely used for power politics rather than for carrying out fundamental duties assigned to it. No single notable wok has been done since last six months regarding constitution making except reaching to some political understanding among the major political parties of Constituent Assembly through the high level political committee which is not even a part of constituent assembly. However, thematic committees have been successful to produce preliminary reports remaining unable to give a holistic approach or clear direction for future constitution making. The provisions made and mechanisms proposed by reports are contradictory, confusing inconsistent and far from reality. Political leaders’ claim that these reports of thematic committees have completed 80% of constitution making, but in reality these reports have not been successful to propose even the framework of constitution. These committee reports merely serve the petty interest of few major political parties, provisions and systems proposed by these reports are populist. If the future constitution is finalized based on these reports, the constitution will itself be the main cause for constitutional instability and disintegration of the country.


In the present context, frustration among the common people about the performance of constituent assembly, political parties and their leaders is escalating. Nepalese people are compelled to face post conflict situation, where disorder, insecurity, impurity, instability and frustration have been parts of their daily life. The state has not been able to maintain political order in the society. The presence of the state in the rural areas is not visible. Rampant corruption, impunity, lawlessness and anarchy and ever rising commodity prices have caused negative impacts on the livelihood of common people and these situations have rendered the future of constitution making process uncertain. The weaker presence of the state on the face of different forms of problems faced by the society at large will raise difficulties and uncertainties for making the new constitution.


The composition of a constituent assembly is itself a very important factor regarding the constitution making. If we observe a successful story of constitution making through the Constituent Assembly, the representation pattern in the House is always meaningful. If there is two/third majority of one single party or coalition between different parties on a common political ideology in Constituent Assembly, the constitution making process goes towards the right direction. And if the House is divided on the basis of political ideology and there is the lack of two/third majority of a single party in the House, constitution formation through the Constituent Assembly becomes difficult. Reality shows, that the composition of Constituent Assembly of Nepal is a hurdle in the process of constitution making. Political parties of Nepal uphold different political ideologies. They have entirely opposite view points on the major constitutional provisions. The past record of their relation with each other is bitter. UCPN (Maoist) is the largest political party in Constituent Assembly. Without its firm commitment to form a new democratic constitution, constitution formation is impossible. The recently concluded UCPN (Maoist) central committee meeting has endorsed "People's revolt" rather than the agenda of institutionalizing political changes introduced by the second popular movement, mainly upheld by UCPN (Maoist) itself.


When a country is involved in making a new constitution to a save the destiny of the entire nation, independent thinking or judgment over some issues of national interest, nationalist approach, sense of legitimacy approach of nation building and faith on constitutionalism are subjects of prime importance. If we observe the duration of past thirteen months of constituent assembly working behaviors, most of the constituent assembly members are not serious about the value of constitution for a country to provide legitimate state. It is a tragedy of all the Nepalese people that they are bound to expect a democratic constitution from power hungry politicians and directionless Constituent Assembly providing a favorable situation for outsiders to implement their agendas "to fish in troubled water" at a time of constitution making.


International Communities In Constitution Making
The role of international community or donor agencies is always important for Nepal for its overall development and now especially for institutionalizing democracy through new constitution. For last few years, many donor agencies are spending huge amount of money to institutionalize republic, secularism, federalism, pro-ethnic, minority, Madhesi, Dalit and gender oriented state structure, even though some people think that constitution based on these subjects will be the main cause for instability or national disintegration. However, donor agencies working in the areas of constitution making are only successful to evoke greater ambitions among the people through different activities, and such a trend will contribute to creating difficulties in times of making and implementing constitution. Similarly, the constitution support program run by donor community has been the cause of the emergence of newly rich class in the society, and this class thinks constitutionalism, democracy and rule of law as their project work only. They never think the basic principles of democracy as a subject of their own faith. It is obvious that, constitutional instability is always in favor of this newly rising class, so called intellectuals, experts, some NGO's and those who do not even know the basics of constitution. Because of their good relation with donor agencies, they are reaping more benefit at the cost of constitution making. If the international agencies seriously want to contribute in the area of constitution making process, they seriously need to find out the real actors to implement their programs. They need to find out those who are dedicated to forming the constitution and for protecting the national interest by understanding the reality of Nepal and limitations of the constitution. If the donor agencies continue their strategy to implement the constitution support program through the help of some newly rich people and if they believe in sending selfish and self orientated people to different capital cities with the intention of making constitution in a perfect way in the name of workshops and orientations in the last moment of constitution making process, they are wasting money and certainly delaying the constitution making process.




Constitutional Stability
Regarding the constitutional making and constitutional stability in Nepal, we should never forget the geo-political situation of Nepal. Both of our neighbors have their own roles and interests in maintaining stability and instability of political and constitutional order in Nepal. The past record of our constitutional history reveals that there has been a major role of external force to destroy the prevailing constitution and promulgating a new constitution in the country. For example, 1990 constitution was mainly destroyed by the external force because of its positive provisions for safeguarding the national interest. After the second political movement, the domestic politics is mainly dominated by external force and domination favors constitutional instability in Nepal. If the external force has planned to maintain instability in Nepal, there will be no consensus among the national political forces because these forcers too are working for external interest rather than for national interest. On the face of such stark reality, constitution making process will prolong for indefinite time.


Political events and reality have shown that the second popular movement was only for destroying the 1990 constitution and the exercise of Constituent Assembly was to prolong constituent instability in the country aiming at the destruction of people's faith on constitution, political parties and ultimately on nationality and nation as such.


If we really need a democratic constitution for Nepal, political parties should build a consensus and show commitment for a democratic constitution without any delay. International community and donor agencies too should mobilize their support in proper and effective ways understanding the reality of Nepal and the limitation of constitution properly. Timely pressure should be built from international community on major political parties for new constitution formation. Strong unity among national political forces is required to defy external forces which always work for delaying the constitution making process and leading the country towards anarchy. 
-The writer is an Associate Professor of Constitutional Law.

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