As May 28 inches close for the second time, the much anticipated Constitution of Nepal is no where in sight. After having written six Constitutions in past sixty years, it is worth looking at some major reasons as to why this Constituent Assembly has yielded no significant result despite the extension of its tenure.


Dual role of the CA

The non-separation of the Constituent Assembly from the Legislature Parliament was an error from the inception of this constitution writing process. The issue of government formation and dissolution took the centre-stage, while the issue of writing the constitution was pushed to the periphery. The dual role of the 601 members as members of the Legislature Parliament and the Constitution Assembly clearly diluted the effectiveness of the constitution writing process. The Constituent Assembly which should have ideally been a body geared towards writing the constitution was unnecessarily bound by political directives flowing from party leaders at every juncture. As a result, issues of the Constituent Assembly were meddled with issues of government formation. Besides this, the Constituent Assembly also became a venue for showcasing protest against the government which has disrupted the CA time and again eating into its time and focus.


Another aspect of the dual role of the Constituent Assembly was the amendment of Article 64 of the Interim Constitution in extending the tenure of the CA by an additional year. The extension was much criticized mainly because of the manner in which it was done. Devoid of any public consultation, it was a unilateral decision by those who had failed to meet the people’s mandate within the stipulated time period. The extension was rather portrayed as favour to the people in desperate times by a mid-night miracle. The CA was therefore a judge sitting on its own case as far as the issue of its own extension was concerned. This is yet another example of how participatory the constitution writing process has actually been.


However, much of these set-backs would have been circumvented had the CA been separated from the Legislature Parliament. This would ensure adequate the focus of the CA towards writing the constitution, as the constitution writing body would not have to be concerned with ‘running of the government’. Also, the size of the constitution writing body with 601 CA members has proved to be a failure for the second time. A separate constitution writing body would provide a better opportunity for the inclusion of experts in the constitution writing process thereby making it more capable in dealing with complex/technical issues such as state restructuring, form of governance and electoral systems among others. The constitution writing body would then be specifically accountable to produce the constitution on time without the excuse of government related issues.   

Lack of Pre- Agreed Common Principles

Writing a modern constitution comes with an opportunity of learning from constitutional jurisprudence that has evolved over a long period of time and successful measures adopted by nations in producing their respective constitutions. However, the CA gave no importance to the issue of ‘pre-agreed common principles’ while writing the constitution. That is why crucial issues such federalism, federal structures, form of governance and land reform policy look irresolvable between the various political parties. A set of commonly agreed binding framework before writing the constitution, would demarcate a perimeter within which the political parties could forward their view points regarding the new constitution. This would streamline the constitution writing process by negating dead-locks on vital issues.


Another drawback of not having learnt from the South African experience of 34 common principles prior to drafting the constitution has manifested itself in utter confusion regarding the new constitution of Nepal. The on going constitutional struggle of Nepal with a history over six decades has revolved around the central theme of ‘form of governance’. Systems have been dismantled only to be replaced by other systems and the process is on-going. A set of common principles especially regarding the issue of form of governance would have been a blessing had it been planned for. Until this issue can be permanently resolved, socio-economic-cultural and other issues will continue to remain in the backseat and so will the issue of producing the new constitution.  


 

Size of the Constitution

An examination of preliminary drafts of the eleven thematic committees suggests that a lot of issues have been sought to be included in the new constitution. For example provisions concerning citizenship have been exhaustively dealt with by the Committee on Fundamental Rights and Directive Principles. Detailed provisions regarding citizenship, protection of rights of the minorities, basis of cultural and social solidarity etc, could have been provided for by Acts and legislations in days to come. A bulky constitution on the making is a reflection of complete lack of trust between the political parties. After all, the test of a constitution does not concern itself with the size of the constitution, but rather on its implementation and legitimacy given by the people. This is yet another lesson not learnt from the constitutional history of Nepal.


These are just some of the major blunders that have hindered the CA from successfully drafting the new Constitution of Nepal. If valuable lessons are not learnt from past blunders they will surely repeat themselves and no amount of time will guarantee Nepal its new constitution.
Dahal is a legal consultant