Opinion

Constitution drafting, Challenges and opportunities

Constitution drafting, Challenges and opportunities

By Binod Kumar Chaudhary

Nepal is in the midst of the process of drafting a new constitution for the Federal Democratic Republic of Nepal. As it is, the drafting of a new constitution is always a very difficult task; drafting a federal structure modeled one, particularly for a small country like Nepal, is additionally more challenging and complicated primarily because of the issues of cost and financial viability and economic sustainability of the fragmented small States. In addition to this major concern, there have been many demands for creating a Federal Structure based on language, culture, ethnicity, geographical region, community concentration etc. The financial viability and sustainability capacity of States created on the principle of such sentiments would always be suspect; however, such sentiments must also be respected. Therefore, one of the greatest challenges in the drafting of the constitution would be to achieve a well calculated balance between these two issues. Despite close to one and a half years long discussion and deliberations, the Sub-Committee formed by the Constitutional Committee of the Constituent Assembly has not been able to take rational decisions on constitutional provisions but instead continue to refer the same to the full Constitutional Committee. Parties like Nepali Congress and CPN-UML continue to argue that themes/provisions such as republic, rule of the law, independent judiciary, fundamental rights, human rights, universal franchise and periodic elections be made unchangeable, a notion which has not been accepted yet by the Maoists. Also the Maoists continue to have provisions to ban political parties depending on ideologies which have been rejected outright by other parties. This clearly proves that there is a growing polarization among the various parties, more based on power sharing arrangement in terms of formation of a coalition rather than larger philosophical issues based on merits in the interest of the country. Questions have been raised that the differences are perhaps a fall-out of a flawed and incomplete peace deal among the political forces with opposite ideologies, interests and constituencies. The 12 point peace accord, therefore, lacks a clearly defined roadmap of political and constitutional reforms including the critical issues with regard to implementation of the peace agreement. Perhaps the primary objective and the common agenda which superseded all these critical issues while signing the peace deal was to get rid of the monarchy and pronounce a Republic. When all the forces came together to address this common popular demand of the people, they perhaps failed to define critical steps like future political direction of the country, institutions and plans of national security, basic and major provisions of the Constitution including restructuring of the state, and common issues for socio economic transformation. Unfortunately, now that this common enemy has gone, the parties are now left with no common agenda based on national consensus. The differences aforementioned are the tip of the iceberg; the divide is much deeper than the eyes meet. We have sensed a deep sense of disagreement based on personal vendettas in the process of formation of the Government, or pulling the Government down for that matter, which is certainly going to make the constitution writing process far more complicated as we enter a more advanced stage. There is also ideological difference of the major parties represent. For instance, Nepali Congress believes in liberal democracy and the Maoists in classical communism. In between we find the CPN (UML) sitting somewhere. How are we going to find a common meeting ground among such forces with totally varied ideologies and objectives? None of these political forces singularly have the mandate or strength big enough to force the provisions in the constitution. All provisions will require two-thirds majority of the House for approval. This means the only solution is consensus and the parties have no choice but to find once again a common enemy and a common agenda. Our common enemy is very much alive and vibrant - poverty, deprivation, unemployment and proper education and the common agenda is equally clear - prosperous “New Nepal”, which every party and every person talks about but does very little in real terms to support the cause. The question arises to many CA members like myself who come from professional background as to what are we doing at this critical juncture. We find that our voice gets lost, no matter how loud it is in such forums, when it comes to pushing a more neutral and rational thought process, as it is all about the number game and who is in the helms of affairs representing the parties. Unfortunately, most of such critical issues are debated offline than online. Such are the critical issues that we are surrounded by. Therefore, we are posed with these questions everyday, when will the constitution be written and if at all it will be written? Chaudhary is CA Member and President of CNI