Making of the Constitution in Nepal

by Menaka Guruswamy

Nepal's political elites need to recognise the historical terms of reference of the Constituent Assembly. They need to set aside their personal quest for power, and focus on coming to a shared understanding of the idea of their country.

On May 28, 2010, shortly before the appointed midnight hour, Nepal came precariously close to the non-extension of its two-year old Constituent Assembly. After 12 years of bitter, armed conflict that claimed about 13,000 lives, the Constituent Assembly played a crucial role in bringing the erstwhile ‘rebel' combatants, the CPN (Maoist) party, into the mainstream politico-legal framework, following a carefully negotiated Comprehensive Peace Agreement and fresh elections. Constituent Assemblies, whose function is to draft Constitutions, have the ability to bring together former combatants within a framework, forcing them to arrive at a common understanding of the founding principles of a nation.

Interestingly, elections at the end of the conflict saw the Maoist party emerge as the largest political party, and therefore the single-largest drafting unit in the Constituent Assembly with 246 seats of around 600 seats. The other two major political parties — the Nepali Congress, and the CPN (United-Marxist-Leninist) — had a little over 100 seats each. The remaining seats were divided among 20 political parties. Significantly, the CPN (Maoists) did not have a simple majority or, better still, a two-thirds majority unlike other historical change-makers — the African National Congress (ANC) in South Africa or the Indian National Congress (INC) at the time of independence, which in their times were in a position to draft a Constitution owing to their overwhelming strength in the Constituent Assemblies. Perhaps, they were less distracted by other political quests, and more focussed on drafting their nation's founding document.

Furthermore, in Nepal, India casts a giant shadow over all political activities, formulations and moves. India's foreign policy is oriented towards a position which apparently locates its national interest as being compromised by the single largest political party of Nepal either forming the government or shaping the country's Constitution. The CPN (Maoist) also made some less than astute moves, with its Chairman Pushpa Kamal Dahal — Prachanda's questionably-timed visits to China.

On that fateful day, as the midnight hour approached, some members of the Constituent Assembly did manage to rise above party politics. Amid swirling rumours of a possible Emergency being declared upon non-extension, I saw the women members of the house — whether they were Maoists or belonged to the Nepali Congress, the UML or other parties — cross party lines, and come together and commence a two-hour chant asking for the Constituent Assembly to be extended. This while their younger male colleagues, who were not involved in the power-plays of their seniors outside the house, sat and watched silently.

Finally the ‘big three' political parties arrived at a three-point programme — comprising a commitment to the peace process, a one-year extension for the Constituent Assembly and, finally, the resignation of the current ‘compromise' Prime Minister, Madhav Kumar Nepal of the UML. And so, 20 minutes before midnight of May 28, 2010, the process of extending the Constituent Assembly commenced which would culminate in a vote to resuscitate the faltering house.

Political gamesmanship and formulas for a ‘consensus' government, a code for who will really be Prime Minister, is the major concern of influential politicians in Nepal. The drafting of the Constitution doesn't quite seem to consume them as much as one hoped it would. Constitution-making itself is precariously positioned, in terms of disagreement over constitutional choices. Choices that shape the political and legal fabric of a nation, such as the form of government, presidential or parliamentary, and even the basis of the federal state — whether the federal units should be based on ethnicity or region — are in question. Other significant areas where convergence is needed include the appointment of judges and the nature and number of fundamental rights.

The Constituent Assembly's thematic subject committee reports which came to their conclusion on the basis of a majority vote, usually reflected the CPN (Maoist) position. For instance, in the context of the form of government, the Committee report on the Determination of the Forms of Governance of the State provided that all powers be concentrated in the President. The President is to be the head of state, the government and the military; and will be elected by popular election for a five-year term. This version of a strong presidential system, while suiting the ideology of a tightly regimented cadre-based party, is often at odds with the needs of a fledgling multi-ethnic democracy. A parliamentary system, with the space that it provides for the voices and narratives of all ethnicities and for regional diversity to manifest through a multi-party system, might be wiser. Alternatively, a convergence could be arrived at via a popularly elected Prime Minister in a parliamentary style democracy.

Another area of concern is the method of appointing judges. The Judicial Committee report provides that the head of state, on the ‘recommendation' of the ‘Federal Legislative Special Judicial Committee' (comprising the Vice-Chairman of the Federal Legislature, the Law Minister, and nine members from the Legislature), shall appoint the Chief Justice and other judges of the Supreme Court. Similar structures are in place at the other levels of the court system. Judges of the Supreme Court are to have a term of four years and are to retire at 65. Another cause of anxiety is that the powers of the Federal Judicial Committee astonishingly include interpretation of the Constitution. All of this disrupts the separation of powers between the executive, the legislature and the judiciary. This in tandem with a strong President structurally locates all power in the executive.

Finally, the Committee for Fundamental Rights and Directive Principles has provided for around 30 enforceable and justiciable rights. This includes the fundamental right to food, housing, employment and social security. While in principle, all nations must prioritise such guarantees, in terms of law and jurisprudence, creating fundamental rights that the state cannot implement due to financial considerations implies that the drafters inadvertently compromise the absolute mandate of such a category of rights. It is preferable to have a few generic fundamental rights, for instance the right to life, and within it progressively create jurisprudence that includes for instance the right to food that a state can afford to actively implement.

Back in the political arena, the former monarch, Gyanendra Shah, who was stripped of all power when Nepal abolished the monarchy, has been spotted in public with increasing frequency. Amidst the game of musical chairs for the Prime Minister's seat being played by all the major, and now even some minor, political parties, the obstinate terms of engagement of India and the coy appearances of a deposed despotic monarch in the business of making a Constitution and, therefore, a new nation, languishes. Nepal's political elites need to recognise the historical terms of reference of the Constituent Assembly. They need to set aside their personal quest for power, and focus on coming to a shared understanding of the idea of their country, and draft its character through a Constitution.

(The writer practises law at the Supreme Court of India.)

source; The Hindu