Making of the constitution
A constitution as a framework of organizing state governance has three basic roles. One, to provide the organogram of governance itself - the flow chart of governing structure; two, delineation of rights of the government vis-à-vis rights of the people; and three, to provide the most fundamental answer to the question of the state’s existence, the raison d’être of the constitution — why it is required to begin with.
The congress would have to first define the reason for the new constitution; why the state of Nepal is going to be redesigned? Although the answer to this most basic question looks tautological, it is the entry point of the formation of the new constitution and state transformation.
The answers are not to be found in the proposals of the various parties on the re-structuring of the state through redesigning of its polity. Rather, the answer is reflective of what future the various competing political forces, envisage for Nepal. Is it that they envision Nepal as a viable, progressive and developmental state?
Or a fragmented and slowly dissipating entity that is in the danger of dissolution by the greater gravity of geo-strategy that has become suddenly very important. What is the raison d’être of the new constitution? And by extension, what is the validation of the current transition? And still further, what is the foundation of the conflict and then the peace process?
The second question the congress would have to answer is securing rights of the citizen in congruence with the rights of the government. This is a straightforward set of questions as to what extent the normative application of different international rights based covenants, conventions, regimes and declaration are going to be incorporated in the new constitution to bring about democratization of the state on the universality of the rights of the citizens. Although it appears basic, this set of questions has deeper implication on the other two as well. The normative diffusion of international regimes percolates through the constitutional articles into both the nature of the state and its defining character.
The third set of question is more about management of the state by charting the organogram of the government. There is much demand for federalization of the state, however, little
focus is oriented towards the hierarchical power devolution onto the sub-national units. Even the nature, character and number of sub-national units are still being debated.
Worse still, there is much overlapping on the demand for statehood within the country — without any agreement on enthno-lingual, geographic and cultural precedence in demarcating the sub-national units’ boundaries. Also linked to this question is how the
demand of sovereignty by the states within the federation is going to be reconciled by the federal constitution? Are sub-national units going to have their own constitutions or will the federal constitution itself invest the place for sub-national units?
The answers to these questions will be best answered by an epistemic group of constitutional lawyers now happening amply among various groups in the civic sphere. However, there is an acute need for these questions to be discussed by a broader set of political parties from among the spectrum for the constitution making process to move forward.