First draft of Constitution: Confusing and vague
The first draft of the constitution seems to lead the nation to a paradoxical state as the draft is not only confusing but also directionless and vague. If the draft is adopted with some minor changes, it may pacify the UCPN-Maoist on the one hand and annoy Madhesis, indigenous community, Dalits and women on the other leading to another conflict. In other words, the country will be passing from one conflict to another. Senior civil society leaders like Damannath Dhungana find conflict inevitable in both the cases, if the first draft is adopted as it is, it will invite confrontation in society, and if it is not passed even with the strength of 94 per cent majority in the House, it renders the House meaningless proving the Constituent Assembly as an ineffective instrument to have a people’s Constitution leading to a fresh wave of conflict from which we had sought freedom.
The draft of the constitution providing 297 articles has been sent to all the districts, where at least two members of the Constituent Assembly collected the feedback from every constituency on July 20 and 21. In reality, the four major parties, the signatories of the 16-point agreement, have the numerical strength of passing any Constitution, but they decided to have feedback with a timeframe of fifteen days in order to transfer power as per agreement, which is possible only after the promulgation of the Constitution.
The first draft seems to have been prepared without any clear-cut understanding. The traditional patterns with old mindset are prevalent. There is hardly any fresh thinking on the structural placement of the subjects. Previous constitutional arrangements have been followed blindly
It naturally leads people to doubt the very intention of the Constituent Assembly — whether it is actually ready to collect and incorporate the feedback to the Constitution. It is doubtful that the Constituent Assembly machinery can process the information/suggestions timely and properly as it is hardly equipped to process them. If suggestions of the people are not taken into account and no improvement is made in the final draft, then the people cannot own it. Mere participation of the people cannot give a sense of ownership, as it will be a kind of fraud on the people whose suggestions are sought but not incorporated in the constitution. Moreover, there is no fixed mode of collecting feedback as there is no seriousness in the business.
There are three pertinent questions to be answered with regard to any new constitution making. First, what are its contents, or where does it want to lead the nation, or how will it lead the nation? Second, how is it drafted, and third, how it is passed? The first question is related to the very need of a new Constitution to replace the old one. It was the Maoist insurgency for a decade, which was negotiated with the signing the 12-point Agreement in November 2005 by the Seven-Party Alliance and the CPN-Maoist with the condition to hold Constituent Assembly election to have a new Constitution for total socio-politico-economic transformation of the country.
Before the election could take place, the Madhes uprising took place adding one more dimension to the Constitution making—that the state should be made federal in which Madhes Pradesh must be provided for. There are several other agitations like those of the indigenous community, Dalits and women etc. Thus, the new constitution is to be made the instrument of peace and progress to meet the requirements of the insurgents, the Madhesis and others. Of course, it has to cater to the democratic demands of the majority of the population to institutionalize the achievements of the last two people’s movements of 1990 and 2006, Alas, the first Constituent Assembly failed in adopting the constitution paving the way for the CA-2.
The new Constitution must indicate whether it leads us to a more liberal, open and democratic society or to a closed one. It must show whether all state organs and constitutional bodies should work independently or to be brought under the executive supremacy with all powers at its hands. All these will decide the future course of the nation. Will it be a regimented country or a liberal democracy? The present draft seems to have made a hotchpotch of the opposites.
The first draft seems to have been prepared without any clear-cut understanding. The traditional patterns with old mindset are prevalent. There is hardly any fresh thinking on the structural placement of the subjects. Previous constitutional arrangements have been followed blindly. The drafting is just like compiling of the demands of the parties in power without eliminating the contradictions. Lists of items have been added without looking into the possibility of their fulfillment. Similarly, the passage of the Constitution too carries weight and meaning. If the draft is passed without much significant discussions and deliberations with speed on a fast track or a super fast tack, it is bound to derail. If it is passed with two-thirds majority or more, it will remain a document of the majority. But if it is passed unanimously, it will be a national document, which will get recognition the world over and will last.
Regretfully, the CA-1 failed as it was made to function mainly as a Parliament, so is the case with the CA-2. It is again being made the instrument of change of power, ignoring its prime task of adopting a people’s Constitution, which may make people desperate to go to any extent, as peace and a people’s Constitution, by and large, remain a far cry.