Author: Sagar Prasai
Think about the difficulties of writing a constitution for a country like Nepal. There are 103 ethnic groups, 17 officially recognized languages, and 19,000 former combatants still in cantonments. In the Constituent Assembly (CA), there are 25 political parties with no one in a clear majority, 601 members who disagree on most everything, 11 constitution drafting sub-committees, three committee rooms, and an anticipated 300,000 submissions to be read. Plus, barring public holidays, there are about 330 days left to complete the job.
Due to delays in every preparatory step – from drafting procedural rules to public consultations – the drafting calendar has become so compressed that if the CA seriously focuses on logistics, it is likely to fail politically. If it seriously focuses on politics, it is likely to fail logistically.
The CA is likely to put out a half-baked draft constitution within its regular term of 24 months – but without enough time to generate a political consensus on the final text. Article 82 of the interim constitution can then be invoked to allow six additional months for the CA to complete the constitution. This likely scenario, consistent with Nepali politics of the past, will create a constitutional crisis.
Predictions on the procedural trajectory aside, there are three critical issues that are likely to prevent broad consensus from emerging on time.
The first issue is the role of the executive. The Unified Communist Party of Nepal (the Maoists) wants a presidential system, with direct elections and a limited-role legislature. The Maoists feel that the promises of their revolution cannot be delivered through a parliamentary system with all the density of checks and balances it entails. In 1996, the Maoists walked away from the parliament to start their ‘people’s war’ calling the parliament a ‘butcher shop that hangs goat heads to sell dog meat.’ A return to the parliamentary system makes the Maoists’ ‘sacrifices’ futile. On the other hand, the Nepali Congress (NC), the second largest party, vehemently opposes the presidential system. NC has a 60-year history of fighting for the parliamentary system and having had the opportunity to rule over Nepal for seven of the nine years in which there was a functioning parliament in Nepal. For them, giving up on the parliamentary system would amount to a complete defeat of their ideology and political prospects. Until a meaningful middle ground is found on these two stances, moving forward on the rest of the constitution will be difficult.
The second issue is federalism. Amidst the rising tide of identity movements in the Terai (Southern plains), the political parties collectively agreed to federalize Nepal in March 2008, just before the CA elections. The decision was taken for political expediency rather than with a commitment for real reform. The result has been that the political discourse on federalism currently has no content, no basis, and no agreed-upon model. In Nepal, the spread and occurrence of ethnic settlements is such that visible chunks of ethnically contiguous territories do not exist. The CA process will have to bring together reluctant parties with divergent views on boundary delineation, degrees of devolution, and fiscal foundations to define the form, function, and structure of federal states in Nepal. This process is going to take longer than anyone can currently imagine.
The third issue is more procedural than content-related. The current rules of procedure under which the CA is operating are designed to develop the constitution entirely through an inductive process. Ten drafting sub-committees build the constitution provision by provision, to be later synthesized by a drafting committee. Most constitutions are developed through a deductive process where the directive principles are first agreed upon and provisions are then assumed from the principles. While the inductive process is more participatory, it has its limitations. At some point, the detail provisions have to be collected into abstract principles for synthesis. This process takes time and requires an additional round of consensus-building around the derived principles. This is another potential deadline buster that has, so far, been overlooked.
All considered, 14 months from now, a constitutional crisis over the lack of progress on the constitution drafting is very likely in Nepal. Ultimately, the kind of brinkmanship practiced in Nepali politics, as ironic as it may sound, remains the only source of hope. Here, when things finally happen, they happen at an impossible speed. Those of us who have closely observed the ups and downs of the peace process in Nepal still can’t get over the fact that within two short years of ending a decade-long conflict, Nepal has quietly sidelined a 240-year old monarchy, declared the country secular, cantoned the combatants, written an interim constitution, conducted an election, brought the rebels into power, formed a coalition government – and is even taking clumsy steps towards drafting a new constitution.
All of that, while the likes of me kept thinking the process was about to fail at any time.