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These are the times, as Thomas Paine once said about the American crisis in the 1770s, that try men’s souls. Nepal is also in that trying phase. The idea of a constituent assembly to draft a new constitution was a luxury for this country, and remains so even today. But with all these vicissitudes that this country has passed through, there is no escape from it. This country cannot walk away from this experiment anymore. There is no choice but to adopt a constitution that reflects the current balance of power, leaving the rest to the processes to be followed later according to the new constitution.

Bipin Adhikari
[Source: http://uspolitics.einnews.com/?promo=601&gclid=CJ_fquSUhp8CFcovpAodvWosUQ]

JAN 01 - Nepal’s Constituent Assembly (CA) is in the 20th month of its existence. It has less than five months now to complete its task of writing a new constitution for the country. If the calendar of its operation, revised for the seventh time, is vigorously pursued in the next few weeks, it would be possible to adopt a new constitution, as expected, by May 28, 2010.

These are the times, as Thomas Paine once said about the American crisis in the 1770s, that try men’s souls. Nepal is also in that trying phase. The idea of a constituent assembly to draft a new constitution was a luxury for this country, and remains so even today. But with all these vicissitudes that this country has passed through, there is no escape from it. This country cannot walk away from this experiment anymore. There is no choice but to adopt a constitution that reflects the current balance of power, leaving the rest to the processes to be followed later according to the new constitution.

The ongoing debate about how to go ahead if the CA is not able to produce a constitution by the appointed timeframe is really unfortunate. Rather, based on an assessment of the CA’s performance so far, this debate should have been geared towards how to create a viable constitution within the limits of what is possible. The debate should not just have been on the right process but also, as is equally important, on the right content of the final document.

Nepal’s civil society is full of “summer soldiers” and “sunshine patriots”. It has already started looking beyond what is on their plates. Quite the contrary, when the Interim Constitution (that sets out the rules of transition) was drafted, it was not just intended that the new constitution would be promulgated on time, but also that it would be a democratic constitution. Again, the written provisions of the constitution devised no contingency plan for an alternative situation. It is sad that efforts are being made to find an outlet that was not conceived in explicit language well in advance. This is shocking.

Except for two thematic committees, all the committees in the CA have already produced their preliminary drafts. True, there are dissenting opinions -- here and there. They are there at the heart of every democracy. What is lacking in Nepal’s context is the role of some political stalwarts who can forge unanimity and give an exit to the larger issues of the number of provinces, the nature of devolution of power and the form of government. The rest of the issues have been mostly settled. There is no reason why Nepal cannot forge a written constitution based on the issues that have been settled, or might be settled amicably in the next couple of months.

There are several countries in the world which were able to draft their constitution in just five months. However, they were wise to craft a framework constitution, quickly and efficiently, instead of lengthy ones. A Constituent National Assembly, for example, was elected only five days after the conclusion of the independence agreements of March 20, 1956 between France and Tunisia to draft a new constitution.

This Assembly is known for its slow progress. The hopes of party leaders who fought during the independence movement that the Assembly would quickly draft a constitution and give way to a freshly elected parliament were submerged in interminable constitutional deliberations, interrupted by a national crisis whenever they seemed on the verge of success. When they found that they could not really produce a constitution that settles everything, they produced a framework constitution, ending the long transition of almost three years.

It must be noted that a long transition is not in the interest of democratic forces of the country. The salient characteristic of the transition period in Tunisia as well was the concentration of power in the hands of the president and his cabinet. In June 1959, Tunisia adopted a constitution modelled on the French system, which established the basic outline of the highly centralised presidential system that continues today. The delay was definitely costly, especially in a country where mediocrity prevails in decision making everywhere.

A framework constitution is not necessarily bad. The U.S. constitution is the briefest constitution which any modern state has today. This is due to the fact that the framers of the U.S. constitution merely laid down the fundamentals and did not enter into details. It consists of just seven articles to which have been added, to this day, only 27 amendments, made in more than 200 years of its life. Even with all the amendments, the total number of words is just around 6,000. There are countries like Iceland, Romania, Indonesia and Kosovo, which relied on framework constitutions to go ahead and end the transition.

The inability of Nepal’s Constituent Assembly to produce a new constitution will affect the democratic faith of the people. It will also put a severe question on the ability of the present generation of Nepal’s leaders to sustain democracy. It does not help Nepal as a nation. A constitution, even though it is skeleton, will help people to be futuristic in their orientation. Issues settled will take a back seat. There will be a new environment for discussion on the remaining issues. It will allow the emergence of a new batch of leaders after a fresh election under the new constitution. These leaders will again have the opportunity to build consensus on issues that remain unsettled, and give an outlet to the nation; that is the most crucial issue for modern Nepal.

The only thorny issue that remains on the way to a new constitution is the subject of integration of Maoist combatants. It has not been given the emphasis it deserves in the transition process. This subject has been pushed to the corner in the vicissitudes of power politics. The combatants are definitely a Maoist creation, but the problem of the combatants must not be reduced to a Maoist problem alone. The government must deal with this issue with some sense of urgency.

Even if the Constituent Assembly tries to hurry things that are still lagging behind, it is so important to settle this issue amicably so that when the new constitution is promulgated, there are no combatants speculating on the new situation. This must be done within the next five months, and on a priority basis. It requires remarkable seriousness and intelligence to bring the Maoists on board on this matter.

If the Maoists are sharp, they will definitely not agree to any constitutional draft, leaving their crusaders in limbo. Even to go for a framework constitution, as stated above, the government should not just consider this issue in terms of its survival arguments alone.

Bipin Adhikari
lawyers_inc_nepal@yahoo.com