An optical illusion, as per most standard dictionaries, is the visual image that differs from objective reality. The information gathered by the human eyes is processed in the brain to give a perception that differs from the physical measurement of the subject and the source. Those dictionaries classify such optical illusions into three main types: (a) “literal” that create images that are different from the objects that make them; (b) “physiological” that are the effects on the eyes and brain of excessive stimulation of a specific type; and (c) “cognitive” that happen to be the result of one’s unconscious inferences, and in which one tends to see what one wants to see. It is this third type of illusion that we, in Nepal, currently suffer from, in the context of the protracted debate regarding the forthcoming constitution, and it is the same cognitive illusion that continues to steam the extreme and opposite views in discussions revolving around this much awaited organic document.
Almost all players, each public event, and most thematic talk programs contribute to the illusion. Whether the limitless promises that are being articulated to the citizenry, the divergent interests of parties and political actors resulting in the lack of prioritization of issues, the inherent if not calculated ambiguity resulting from the messages emanating from the civil society, the unfathomable expectations of the people at large, the excessive intellectualization of theoretical issues by some actors blurring the debate, or the clash between those who see the Nation State as only a tool or those who see it as an arena for the dramas of distributional politics aimed at providing the greatest good for the greatest number; all are, to some degree, contributing. The Nation has, at this time, become a class organization in waiting. And in the midst, the real issue, having causal relation with our behavior, is being totally misunderstood, if not blatantly ignored. Certainly, the issue of real concern in the Nepalese governance -and that too since the very first era of the country’s constitutional history- has not been that of a constitution, but more specifically of constitutionalism, which frequently appears to have been in breach. Not one single constituent instrument can take pride in having recorded complete obedience and full implementation. Each one of them, on more than one occasion, has been violated, ill-interpreted, misinterpreted, or suspended to serve some specific interest of governance of the time, although sporadically, the Supreme Court has shown audacity -often quite justly- in its limitless prowess to judicial activism in trying to bring it back on track.
No doubt, our constitutional history speaks volume about our constitutional behaviorism in the system of governance. There may, thus, not be valid enough reasons to be irked when a few commas and semicolons are added, periods and dashes are deleted, paragraphs are shifted, or annexes are reformulated, often by invoking the doctrine of necessity in service of a Nation, howsoever useful the outcome may be for a particular ideology. Let us admit that the task of constitution-making is an exercise, too crucial to be deterred by the triviality of individual concerns. Its logical conclusion should lead to rebuilding trust, honoring the sacrifices of the numerous known and unknown martyrs and creating harmony amongst all. The exercise needs to be carried out more adroitly than any other mundane legislative and executive duty, and quick-fixes should be avoided, as they can be more destructive and lacking in forethought. Moreover, the exercise requires ensuring the creation, in a dicey setting, of a functional equilibrium acceptable to all (citizens, civil society, institutions, and various claimant groups inside and outside the country), in particular, in a context where demands are imbued with hidden meanings, and where challenges remain aplenty as to what need to be included and what need not.
Opinion varies in what constitutional experts think a constitution should necessarily contain. The principal line of division, as quite clearly highlighted by K.C. Wheare (Modern Constitutions, Oxford University Press), for instance, is found between those who regard a constitution as primarily, and almost exclusively, a legal document in which space is only granted for the rule of law, and those who think of a constitution as a sort of manifesto of a faith, a statement of ideas, or a charter, granting them opportunity to include a broad range of political, economic and socio-religious issues. Also, as noted by Laurence H. Tribe (American Constitutional Law, Foundation Press), a constitution is an historically discontinuous composition, the product, over time, of a series of not altogether coherent compromises, mirroring no single vision or philosophy but reflecting, instead, a set of sometimes reinforcing and sometimes conflicting ideals and notions. This internal dynamics of all constituent instruments, coupled with the above philosophical division, further enhances our illusionism in optics, the contour of success as well as the risks of failure being omnipresent.
Indeed, it may not be inappropriate to remind ourselves that countries with supposedly great constitutions in paper can also totally fail in their nationhood, and countries without a properly written constitution (as one single document) can also actually evolve unhindered. It is, as such, not the size, the length or the inconsequential detail, but the substance of, and behavior towards, a constitution that actually matter. The renowned French thinker, Georges Bidault, was absolutely right while commenting that “the good or bad fortune of a nation depends on three factors: its Constitution, the way the Constitution is made to work and the respect it inspires.” Certainly, the Nation -our nation- which is also an arena, needs to be transformed according to the context of the moment and drawing lessons for the above. Thus, the form of the end-product itself and the timing of its promulgation will, in our case, depend on how fast the compromise will be secured on all challenging and pending issues, and how obviously the premonition will be visible for the document to command the respect it ought to deserve. Until then, all will continue to have their own optical illusion: i.e. expecting for the best and preparing for the unknown, in whatever form, substance or mindset that may be!
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