18 DEC., 2013, KATHMANDU, NEPAL – Politically unstable country is the place where violations and riots are always erupts. Nepal is in the limelight of its new constitution writing process which has failed earlier. The recent Constituent Assembly Poll results have been declared almost a month ago still forming a new government and continuing the process of drafting and finalizing the long awaited constitution is far from imagination of public. Political parties has postponed to submit the names of their cadres to representation to the assembly from the non elected quota twice and still insisting for longer period of time.
In this scenario, prominent writer and executive director of the Nepal Law Society Mr. Krishna man Pradhan has voiced out his idea and ideal way out for the parties to form a government and move forward to the process of finalizing the constitution and promulgate in said time frame.
The second Constituent Assembly (CA) has been successfully elected. However, its results have been surprising considering the expectations of most political parties. The CA election was carried out with the primary motive of allowing people to elect representatives to write a constitution on their behalf. The constitution needs to be written on the basis of consensus.
This time, the public mandate suggests that the constitution can be written with the help of a clear majority. Almost thirty political parties, including the Nepali Congress (NC), CPN-UML, UCPN (Maoist) and Rastriya Prajatantra Party-Nepal (RRP-N) are represented in the CA. Most of the major parties have expressed their commitment to a federal, democratic and inclusive constitution. Many have envisaged writing the constitution within one year and creating the necessary federal provinces within three years.
The constitution making process in Nepal dates back to 1947. Some of the previous constitutions were written to institutionalize the Rana regime and the Panchayat system. Others were written to ensure the people’s sovereignty. But none of them were written by the people themselves.
In 2008, the first CA was elected based on the Interim Constitution of 2007. It was elected with the express mandate to write the constitution within two years. It formulated the CA procedural rules in 2008, put out regulations and a CA calendar. It took six months alone to prepare the rules. Within the first one and a half years, the thematic committees of the CA had submitted their reports. As per the rules, the CA and its committees carried out a number of tasks, such as electing the president, vice president, prime minister, chairperson of the CA, and vice chairperson of the CA. The CA formed eleven thematic committees and two procedural committees along with its chair and members. These committees also organized campaigns and collected public opinion from 3,915 VDCs and 58 municipalities in all 75 districts.
The thematic committees prepared their concept notes and preliminary drafts, which were presented to the full house of the CA. The CA held discussions over the reports, for five days for each report. They were subsequently presented to the Constitutional Committee (CC).
Initially, there were over 300 disputed issues in various constitutional matters. However, the parties formed high-level political mechanisms and a dispute resolution subcommittee under the Constitutional Council (CC) to resolve disputes. They were able to bring down the number of disputes to almost nil. A broad political agreement that would have resolved some of the thorniest issues was reached two weeks before the dissolution of the CA in May 2012. But that agreement could not be sustained and the CA got dissolved.
The new CA
Almost all of the political parties represented in the first CA are represented in the second CA too. Their strengths have been reorganized. As such, the achievements made by the first CA must be upheld. In fact, the parties should look back at the agreement they had reached on May 15, 2012 when they had agreed on the form of governance, the election system, the judicial system, and federal division based on multiple identity. That will help them implement their promise of writing the constitution within one year.
Besides, it will be helpful to have a clear calendar of operations for one year. For this purpose, the current CA should amend the Legislative-Parliament rules. The amendment should be finalized within a month. The rules should be such that there would be no duplication and repetition of issues settled in the first CA. Therefore, the number of thematic committees should be as small as possible. It would be better to just have three main committees: a Drafting Committee, a Public Opinion Collection Committee and a Constitutional Committee.
What is to be done
In order to avoid the problems faced by the first CA, there must be provisions to ensure regular meetings of the assembly. In fact, there should be at least four CA meetings every week. The attendance of top leaders must also be ensured. The first assembly was largely dominated by a handful of top leaders who made key decisions outside the assembly. The second assembly must not suffer the same fate.
The parties would do well to have the first draft of the constitution based on the report of the first CA ready within three months. In the subsequent two months, the draft should be taken to the public for the collection of people’s opinion. That will help them promulgate the constitution within a year. In order to ensure the timely and successful promulgation of the constitution through the second CA, I have a few suggestions to make:
The parties should accept the verdict of the people and not waste any time anymore. They should reach an understanding over key positions such, as who will be president, vice president, CA chairperson and CA vice chairperson. Each party should constitute a constitution drafting committee, which should coordinate with the CA’s Drafting Committee.
The CA should seek the cooperation of civil society and the media to gather public opinion. Disputes should be settled on the basis of consensus. If that is not possible, such disputes should be settled through voting in the CA.
After promulgation of the constitution, it should be legally institutionalized within three years through the enactment of all necessary laws.
(Editor’s Note: This Article was recently published in the print of Kathmandu Post)