Emerging against the backdrop of a decade long conflict, the present constitutional process of Nepal has sought to differentiate itself from any of its predecessors in more ways than one. Among them, ‘participatory’ nature of the constitution building process has been highlighted as one of the most unique features of the current process.
It was realized that the past constitutions were produced purely by experts (Government of Nepal Act, 1948- drafted largely by Indian experts; Interim Government of Nepal Act, 1951- drafted by Indian experts; Parliamentary Constitution of 1959- drafted by Sir Ivor Jennings and experts; Panchayat Constitution of 1962- drafted by experts through constitution drafting commission formed by the king; Constitution of the Kingdom of Nepal, 1990- drafted by experts through constitution drafting commission). The lack of a participatory process in realizing the aspirations of the people was more than apparent from the past constitution drafting processes of Nepal. However, the current process has come with the claim of moving from a mere ‘constitution making process’ (expert written constitutional process) to a ‘constitution building process’ (participatory constitutional process).
The inclusive nature of the Constituent Assembly comprising of 601 members was amplified in such a manner that it overshadowed the issue of a genuine participatory constitutional process. The question to be asked is whether an inclusive process of forming the Constituent Assembly suffices for a ‘participatory’ constitution building process? If participatory constitution building process is to mean something more than a mere inclusionary process of CA formation, then the current constitutional process of Nepal has not reached far in capturing true participation of the people.
People’s participation in the present constitutional process has been mainly limited to two rounds of public consultations to be conducted by the CA in seeking to encompass the views of the people regarding the new constitution. However, out the two public consultations that were initially planned for, only one such consultation has been conducted in a hasty manner by cutting short the planned schedule. Besides this, one of the procedural committees “Public Opinion Collection and Coordination Committee” was formed with the idea of encouraging public debate and receiving suggestions of the people. Similar to the suggestion received in the first round of public consultations, there was no mechanism of actually incorporating any of the suggestions received by the Public Opinion Collection Committee in the preliminary draft of the Constituent Assembly Committees. As a direct result of this, whenever the first draft of the new constitution will appear, it is will be void of suggestion/views of the people.
As far as public discussion about the new constitution is concerned; there has been no encouragement or space for it in the process. Awareness about the new constitution and public debates on constitutional issues has been left to personal and non-governmental initiatives without the involvement of the Constituent Assembly. The Constituent Assembly has also not been able to disseminate its achievements of the last three years to the people. On one hand, this has prevented effective public discussions from taking place, while on the other hand it has increased the frustration of the people due to lack of information. Also, prevalent confusion regarding the nature of federalism, state restructuring, forms of governance- both inside and outside the Constituent Assembly is the by-product of the lack of adequate discussion on such topics.
The culture of only the ‘senior leaders of political parties’ being capable of reaching binding settlements even on issues concerning the new constitution has negated the participatory aspect of the constitutional process to a large extent. This culture has manifested itself by having an impact on two significant aspects of the constitution writing process. Firstly, it has limited the effectiveness of the Constituent Assembly due to its potential of over-riding the achievements of the CA through political settlements at the highest level. As a reflection of this, especially the younger CA members have time and again expressed their frustration about their limited role within the Constituent Assembly. Secondly, excessive focus on ‘senior leaders of political parties’ for consensus on all key issues of the constitutional process has prevented the possibility of referendum in seeking direct participation of the people. Given the vast nature of transition that Nepal is going through, certain key issues should have been reserved for the people to decide directly through a referendum rather than settling all issues by a handful of political leaders. One can however understand the paranoia among the senior political leaders about seeking direct participation of the people through referendum, because of the lack of guarantee that their respective party interest will be upheld by the masses. This culture has therefore taken away the essence of a truly participatory constitutional process.
What has not been realized even as of now is that, it does not depend on whether or not a handful of leaders agree with the new constitution, but rather the ability of the people to internalize, own and uphold the spirit of the constitution. This can only be ensured by a truly participatory process. Therefore, mere tokenism of a participatory constitutional building process is one thing, while a genuine participatory constitutional process is another.(Dhakal is legal consultant)