Engaging Experts In Constitution Making

<br>Abhishekh Adhikari

May 29, 2011, 5:45 p.m. Published in Magazine Issue: Vol.: 04 No.-23 May 27 -2011 (Jestha 13,2068)
The question of extension of the tenure of the Constituent Assembly (CA) has been in intense debate in Nepal of late. There are people who favour it. But there are also people who think the term should not be extended because the CA has not been able to deliver as expected. So it is important to consider ways to create a win-win situation for the people on both sides. Thinking out of the box can be an alternative – that means, giving credit to the CA for making the new constitution while at the same time engaging experts to complete the rest of the draft constitution. The draft can always be taken to the people for discussion and approved by a two-third majority in the CA. This is the right time to do it before people will lose faith on the leaders of the political parties. If people lose faith, the consequences could be devastating to the country, the people and their leaders. We cannot say that monarchy will not be resurrected. We cannot deny that foreign powers will not intervene in the vacuum thus created. It is quite certain that there will be no constitution by May 28th. There is also no guarantee that there will be a constitution in the next year or so even after the extension of the CA's tenure. An alternative to the CA without undermining its achievements should be a win-win situation for all.

It will not be fair to say that there was no work done by the CA members. Just that they have not been able to ink a constitution. There are plenty of materials for experts to make a constitution now. There is the expertise in the country. Taking the raw materials prepared by the CA, it will be wise to let experts draft the constitution.

It will be unwise to blame the CA for its failure to draft the constitution. To have the determination, dedication and devotion to draft a constitution is no child's play, especially, when there are such issues which could make or break people's future. Anyone would feel the burden of the responsibility of doing it. Most of the CA members are novice in law making. Experts have faltered over this responsibility. It requires an in-depth knowledge of the subject matter, understanding of experiences from different countries and implementing them in the context of Nepali soil. Many countries have brooded over the making of constitution for considerable number of years.
Federalism has become a contentious issue in Nepal. The issue of federalism, although not unique in the world, is certainly new to us. To fathom the consequences of well defined federalism so far has been out of the understanding of a common man as well as experts in Nepal. The same is true with an ill-federated Nepal. Without knowing properly what we are getting into there is definitely a fear psychosis amongst all Nepalese.  But we can always tread a path carefully - one step after another. There is no going back from federalism is for sure. It was legitimately resolved by the CA that Nepal is a federal democratic republic.

Constitution drafted by experts on the foundation created by the CA will definitely not be influenced by the combatants' issues. Combatants' issue has been another obstacle in constitution drafting at present. The game of musical chair played by politicians cum CA members to form the government would not affect the drafting of the new constitution if the job is handed over to the experts now.

A need for a constitution has not been denied by any political party right now. They all seem to be working for it. They just do not seem to have the last adrenaline rush which is behind the success of every race. A federal state in Nepali context would be difficult to handle without a constitution. A reflection of the aspirations of all communities in the new constitution which is democratic and progressive is in the interest of Nepal and everyone seems to have realized it.

If natural birth is difficult, a cesarean is done to facilitate it. This is no difficult task for the doctors. Similarly, when the foundation is laid by the CA members to have the difficulties removed by the doctors of the constitution is an easy way and the right alternative to the failing Constituent Assembly. The new constitution will be drafted with the finishing touches of the experts on the grounds laid by the Constituent Assembly. A draft constitution thus prepared by the experts can be approved by the CA by calling the House.    

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