Thursday, January 14, 2010

Picking their brains

We could learn much from the international constitutional experts meeting this week.

Bipin Adhikari The Kathmandu Post, January 13, 2010

Nepal is on the last leg of the timeframe of writing a new constitution. The unfinished work of the Constituent Assembly needs to be completed very soon. It is also a time for self-analysis and national introspection of what has been achieved to this day. This helps to strengthen the prospects of devising a constitution that Nepal deserves. Simple facts are often in danger of being overlooked in all the angst and analysis of our partisan politics. One cryptic example of this situation is the debate on whether the judiciary should remain independent or be brought under legislative oversight. A quick but impartial process of looking into what has been done so far is certainly a welcome step for this country.

To a realist, the constitution building process is not just about sorting out universal values and principles and expressing commitment to them through a carefully designed framework. It is also about the narrow material concerns of the people who are bringing changes. There are such material interests when they vote on specific mechanisms for implementing various aspects of the constitutional design. Participants in this process refer to distinctly different sources of knowledge and information to reach a judgement. There are more frequent movements back and forth from philosophical principles to narrow material interests. Even the mass communication media who report on these patterns of relationship are not immune to these shifting positions. There is no secret about this aspect of making the constitution.

A vigilant process is without doubt a major concern. It needs not be overemphasised that every democratic constitution is the result of compromises and adjustment and accommodation. It cannot represent the complete supremacy of the views of any particular group, or of any community or region. Everybody is obliged to yield. But in the final analysis, it must be able to establish the lasting principles that give meaning to human society.

It is essential to review the constitution making process being implemented through a little different way. It is in this direction that the Nepal Constitution Foundation in cooperation with other partner organisations including the Tribhuvan University Faculty of Law and the Supreme Court Bar Association is organising a three-day International Conference on Dynamics of Constitution Making in Nepal in Post-Conflict Scenario in Kathmandu this weekend.

Taken as a very high-profile conference, its main objective is to get international inputs from mature constitution builders from around the world on what has so far been achieved by Nepal in its bid to draft a post-modern constitution for itself. This input in the form of comments, suggestions and ideas will follow the keynote speech to be delivered by the chairman of the Constituent Assembly who is giving leadership to the nation in its constitution making business.

This conference is unique in several senses. In fact, many experts have come to Nepal from abroad, talked with a limited range of local stakeholders, given their advice on important constitutional issues, some times in a very diplomatic language, and have left the scene. Many sincere donors have assisted this process. But this has happened without the necessary backup and further engagement plan. This conference is probably the first organised effort to get established international constitution builders together for their input in the constitution making process based on certain tangible materials.

In other words, these experts are not commenting on abstract issues anymore. By now, the Constituent Assembly has produced many thematic reports on the draft constitution. Not only are the issues confronting Nepal clear, the organised response of the Constituent Assembly is also more than straightforward. Even issues in which the assembly has been far behind its schedule are as clear as the cleavages behind them. This is the moment that the process of constitution making needs international expertise. This will help the stakeholders to know where they stand — and how the people who have little political interest in Nepal evaluate the norms and procedures, and systems and institutions — solely on the strength of this expertise.

The conference also gives international experts coming from diverse regions including India and China an opportunity to give their opinions on several issues that are considered contentious in this country. Again, the discussions that are to be organised are not among “internationals” only, it will be an interaction with leading Nepali constitutional experts and many important members of the Constituent Assembly, lawyers, civil society members and so on. Whatever inputs are received will be taken to the Constituent Assembly, especially its Constitutional Committee, after they have been processed.

Some of the expert participants are people who have worked with the Nepali people in the past. Others have strong academic or professional interests in emerging constitutional systems. The organisers of the conference plan to remain in touch with all these experts, engage them in the area they have so kindly agreed to contribute, and work with the Constituent Assembly until the draft Nepal constitution is adopted and promulgated.

This conference is a national initiative in every sense. It is demand driven. They have decided on not just the experts who have been invited to take part in the conference but the papers that they have contributed were sought from them in view of their special expertise. This is also a form of public participation (in fact, “international public participation”) in the constitution drafting process. Such an exercise will definitely make the people look back, review their achievements and help enhance the perceived legitimacy and acceptance of the resulting document based on the shared knowledge of humanity.

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