Moderators’ plight - Bipin Adhikari

One can easily map the plight of the members of the moderating committee at the Constituent Assembly. Doing something in moderation means not doing it excessively. It is not perhaps out of place here to mention that in ancient Greece, the temple of Apollo at Delphi bore the inscription Meden Agan (nothing in excess) for posterity to remember. For this to materialise again, this country needs the sincere and nationalist support of the senior leaders to the moderation committee.

[Source: The Kathmandu Post, October 08, 2009]
http://www.ekantipur.com/tkp/news/news-detail.php?news_id=843

It has already been more than five months since the Constituent Assembly (CA) created a committee to study the concept papers and preliminary drafts produced by the different thematic committees. This committee is supposed to moderate these documents according to the given terms of reference and present a report to the full house for final adoption.

Once its recommendations are discussed in the full house, and adopted according to the CA rules, they lead to the Constitutional Committee for comprehensive drafting purposes. Although the role of the committee is very important, it has not been able to make much progress in its job for various reasons.

The purpose of the drafting phase in the constitution making business in Nepal is to establish an integrated constitutional proposal. This proposal — in the form of the first comprehensive draft of the new constitution — is to be done by the CA Constitutional Committee, which is one of the 11 thematic committees working in the house.

The Constitutional Committee can prepare the first integrated draft only after it is able to move from the strong but unstructured common constitutional will of the earlier phase. The drafting phase leads all the exercises done in the earlier phase to the formation of a common will around a precise integrated constitutional proposal.

The job of the draftsmen in the Constitutional Committee, however, is not easy. As the concept paper and preliminary drafts produced by six of the thematic committees have shown, there is lack of consistency in their approach to the new constitution. There is too much influence of the political party of the committee chairman on the committee concept papers and preliminary draft in some cases.

For example, the Committee on the Determination of Legislative Organ has produced its report based on the parameters of the parliamentary system because the committee leadership belongs to the Nepali Congress. In the same vein, the Committee on the Judicial System produced its report proposing a judiciary almost committed to the government becase its chairperson belongs to the UCPN (Maoist), which does not believe in the independence of the judiciary and its power of judicial review of issues of unconstitutionality. The values that both these parties have built are almost irreconcilable on fundamental grounds.

There are clear-cut ideological divisions between the UCPN (Maoist) members, who form the largest group in the house, and the others. There are dissenting notes signed by Tarai-based parties as well. On several issues, the CPN (UML) has marked differences with Nepali Congress priorities, although both these parties have a liberal orientation. There is little that has been done to sort out these differences in camera.

Issues like the nature of the electoral system or the number of provinces that the country is going to have should have been settled between the major parliamentary parties without much controversy. The situation has been further aggravated by issues of emotional value. The issue of whether to continue with the age-old flag of Nepal or to design a new one has been made controversial because the parties have done little homework.

Above all, three crucial issues — the form of government, nature of provincial arrangements and devolution, and the rest of the issues of state restructuring — do not show any trace of judicious resolution. The demand for ethnic demarcation of provinces, the question of “premium rights” (the so-called agradhikar), and the efforts to colour developmental issues in the periphery of ILO instrument 169 as overtly political issues will further complicate the prospect of any workable moderation. The forces which have almost lost the claim of “one Madhes one province” at the political level have re-energized themselves with the demand of Hindi as a new programme for the balkanization of the Tarai.

As the thematic committees in the unicameral CA started working on their part of the constitution making business without any “objective resolution” — or the basic principles which must be honoured in every case — the concept papers and preliminary drafts of their portion of the constitution are being produced independently of common governing (underlying) principles.

According to Radheshyam Adhikari, a senior member of the committee to study concept papers and preliminary drafts produced by different thematic committees (one can roughly describe it as a moderation committee), this group is working on the reports of four out of six committee reports so far produced and discussed in the house. These reports are being examined to see whether they have covered all the constitutional subjects under their terms of reference, and whether there are any jurisdictional overlaps or theoretical discrepancies in them.

It is the responsibility of this committee to see all the reports in their entirety and suggest necessary moderations to the full house, where applicable. If accomplished in its proper spirit, this moderating committee will definitely help the full house to consider all the propositions that they make to develop an integrated approach, adopt them with necessary treatment, and forward them to the Constitutional Committee for drafting an integrated constitutional proposal.

As the process of moderation at this level involves eliminating or lessening extremes, it will not be possible to do it without the serious commitment of senior leaders of major political parties. Ensuring consistency and accuracy also demands expert inputs at all levels within the committee. These inputs may help the committee members to get new ideas and alternative approaches for their consideration.

At the end, the problem is that moderation is never a militant approach. It is a process to make sure that assessments are valid, fair and consistent. It is a type of quality assurance to make sure thematic committee members’ formulations are consistent across the valid constitutional standards and universal principles. But nobody can reconcile what is inherently irreconcilable.

One can easily map the plight of the members of the moderating committee. Doing something in moderation means not doing it excessively. It is not perhaps out of place here to mention that in ancient Greece, the temple of Apollo at Delphi bore the inscription Meden Agan (nothing in excess) for posterity to remember. For this to materialise again, this country needs the sincere and nationalist support of the senior leaders to the moderation committee.

(lawyers_inc_nepal@yahoo.com)