SPEAKING
FREELY Nepal's constitution: Respect the
dissenters Gyan Basnet
Speaking Freely is an Asia Times
Online feature that allows guest writers to have
their say. Please
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Hopes that Nepal
will have a new constitution by the May 27
deadline set by the Supreme Court have been raised
with news that the major parties have agreed on
all contentious issues. However, the agreement
goes beyond the politicians. People from different
segments of society are demanding more by way of
identity, powers and rights. Most importantly, the
Constituent Assembly's deadline is only days away,
and the final draft of the constitution has not
yet been prepared. Several questions must be
asked: Where is the opportunity for the people to
have their
say? Will the
constitution not lack legitimacy if made in such
haste? Will it survive for long?
Already
some people are claiming that the deadline for the
Constituent Assembly must be extended in order to
secure a complete constitution. Others argue that
the political parties themselves would have reason
to claim a further extension if a draft at least
is made available by the deadline. Any outstanding
contentious issues could still be discussed and
the complete constitution promulgated later. At
this point some very important questions need to
be considered: What, for example, is next if the
assembly really does fail to provide a
constitution by May 27? The state cannot go on in
a vacuum. Should the assembly deadline be extended
again, and, if so, on what basis?
How
democratic? Constitution making is one
aspect of a nation's multifaceted public affairs:
it is a process by which the population is able to
participate in determining its political status
and in influencing its own economic, social and
cultural development. The constitution-making
process should involve serious discussion of
conflicts, interests, preferences, and needs. It
should be accompanied by massive efforts to
involve the public before, during and after the
drafting stage. Otherwise all theoretical and
legal justification for the legitimacy of the
constitution could be undermined.
Experience shows that where a constitution
is produced in haste with minimal homework and
insufficient effort to build consensus among
society, the resulting constitution often turns
out to be more a problem than a solution.
In today's world, actual participation in
the constitution-making process has become one
criterion of the constitution's legitimacy, and
this is promoted now as both a right and a
necessity. The effective participation of those
affected by the decision-making processes and
their right to have a say are vital. Whereas the
functioning of the constitution lies at the heart
of the political establishment, its making can no
longer be confined exclusively to the domain of
high politics and to negotiations among elites who
may draft the text behind closed doors.
The constitution is not a thing to be
decided upon by a few politicians in a hotel room.
However, that is precisely what appears to be
happening in Nepal context. The deadline for the
assembly is fast approaching, but where is the
time to be allocated for public debate of the
constitution's final draft? Should they not be
given time to debate and discuss its contents? At
present it seems highly likely that there will be
insufficient time even for the lawmakers within
the assembly itself to discuss the articles and
sub-articles.
Decisions are normally based
on reason and transparency, but in Nepal scenario
there is a significant disparity in political and
social power between that of the elite and that of
ordinary citizens. South Africans were encouraged
to participate in the constitution-making process
with the slogan: 'you have made your mark: now
have your say'. The public made two million
submissions over the final draft. Their comments
and suggestions were widely debated and taken
seriously before the final constitution was
drafted. It gave the general public a sense of
belonging, a sense of participation, and a sense
of writing their own future. Where there is the
right of Nepalese people to be involved the
process and to say what they think?
Why
extend the deadline? Firstly, a legitimate
constitution cannot be written with such haste
that it breaches the requirements of the
democratic process. Nepal's new constitution must
be the embodiment of the hopes and expectations of
their people: it should not merely define
political powers but reflect the very soul of
their society. Its drafting must follow certain
principles and procedures, and it must be regarded
as infinitely more significant than 'black letter
law'. Even in passing ordinary laws, the state has
to follow certain rules, principles and
procedures: producing a constitution is infinitely
more demanding. The new constitution is going to
impact on the fate of many generations to come. In
view of that, are they taking the matter seriously
enough? Should the people of Nepal not be allowed
to debate on their future rights before the
constitution is in any way finalized? The assembly
certainly needs more time to address these issues.
Secondly, the constitution should not be a
thing to be decided on only by a few leaders in a
closed room. Its function will lie at the heart of
the political establishment: it will define the
framework and main functions of the organs of
state, and set out principles governing their
operation. Should there not then be time for
public comment and discussion on its provisions?
Is it not their democratic right actually to
participate in the constitution making process?
The culture of last minute rushes to
decide national issues among Nepalese politicians
has to be entirely discouraged. It has happened
many times before and should not be repeated
again. Some technically qualified elite with a few
politicians must not view constitution making
solely as the legal and expert drafting of a
contract. Rather, its conceptualization and
practice should develop into an open-ended
conversation between all members of the political
community.
Thirdly, there is a strong
feeling that the parties should move ahead in
accordance with the verdict of the Supreme Court
which barred any further extension of the deadline
of the assembly. However, Nepal must always keep
the national interest at the very center of their
thinking as they go through the period of
transitional politics. The national interest must
be seen to be more important even than the court's
decisions and decrees. Their greatest need is to
survive as a nation, united. No one should seek to
limit the power of the people, and dialogue is the
one way that can lead them towards true peace. It
is, of course, important that judicial decisions
are respected, but the supremacy of the desires of
the people has to be maintained. In the name of
separation of powers or respect for the justice
system, they should not gamble with the fate of 27
million people. The assembly must, therefore,
continue with its task, complete its mandate, and
ensure a stable political future for their
country.
Fourthly, there has recently been
a pervasive demand for ethnic self-determination
and ethnic federalism and there have been
dissenting voices from different segments of their
society over the recent agreement reached between
the major political parties. Should all such
demands not be addressed now through the political
process? If the new constitution is to fulfill its
purpose in setting a tone and establishing the
identity of their country it must address these
demands while maintaining social harmony and not
engendering ethnic anger, suspicion, and
resentment. No one must be ignored in the
processes. All demands should be addressed through
talk and through political processes. Nepal must
not rush regarding this issue. There may need more
public debates and dialogues among the different
segments of their society.
Constitution
making inevitably involves a tussle over the
distribution, redistribution, and sharing of
powers, but their resulting future constitution
must become the milestone, the peacemaker and the
tool that brings their war-torn society together:
it must not become a tool that leads the society
to even further conflict. Nepal's federal
constitution must address the identity of the
entire population so that a confident nation may
look forward to a stable future with complete
internal harmony. Will the new constitution really
offer the country a safe exit from the on-going
crisis? Sadly, on the basis of current knowledge
there must be a serious doubt. For that the
assembly will almost certainly need more time.
Fifth, who is likely to benefit most from
a failure of the assembly? This is an important
question, which everybody should bear in their
mind. There are many national and international
elements, organizations and individuals who do not
want peace restored in Nepal. They wish to use the
opportunity to serve their own petty interests.
These invisible elements stand to benefit most if
the assembly is dissolved. Yet the assembly is the
one body that can still highlight the problems
that they are facing, give the people a voice, and
become the platform for promoting the common
interest of all their citizens. The deadline must,
if necessary, be extended to defy the disruptive
elements and to protect nation's common interests.
Finally, the assembly is the only
legitimate political body in Nepal right now. If
it is dismissed without completing its task, an
even larger political vacuum will have been
created, and the political transition in the
country further extended. It will do nobody any
good whatsoever. There will be no winner - most
certainly not the on-going peace process where the
whole political spectrum that they have built for
nearly six years will be completely confused. To
go now for a fresh mandate is neither feasible nor
practical politically, socially, or economically.
Most importantly, there is no guarantee
that any new poll would bring peace to the country
automatically. People have to be more pragmatic.
They have to learn the lessons from their past
mistakes, which is not something that they seem to
be doing at present. It is time that they accepted
that there is but one option left, and that is to
address all problems through the present elected
assembly.
Three conditions The
term of the assembly should be extended only if
three conditions are met. Firstly, realizing the
mistakes and reckless use and misuse of power by
the politicians to date, the assembly itself
should make a sincere official apology to the
people for failing to complete the peace process
and write a constitution on time. This could
result in a general feeling of 'responsible'
politics, and the people may once again forgive.
Secondly, the political parties must before the
deadline release at least a draft constitution
that represents a consensus among all the
different political and social segments: the
remaining issues can be completed with sincerity
later. Finally, the political parties must
undertake to rise above partisan politics and
abandon partisan interests for sake of the common
national good. Most importantly, they must arrive
at a common agenda and formal agreement on the
various subjects of national interests.
The choice is theirs A
democratic constitution cannot be written with
such haste that the requirements of the democratic
process are breached. More hard work may be
needed, more time to arrive at concurrence among
the many different social segments. People need
not rush. Just as Rome was not built in a day so
the transition to a new constitution and the rule
of law cannot be achieved overnight. The South
African Constitution of 1996 is widely regarded as
a model constitutional text, but it took over
seven years to achieve the final consensus among
that country's political forces.
History
and international practices show that any
generation needs to make a sacrifice for the
betterment of the coming generation. People of
Nepal have already made many sacrifices, but I
urge every Nepali through this article, in the
interest of their nation and of securing rights
for all in the future, to make one more. It's now
or never: the choice is theirs. People of Nepal
must make sure that their children will not have
to suffer like they have: that they will not have
to participate in another revolution. People of
Nepal must make sure that they can experience
stable politics, and a stable democracy as part of
a prosperous and proud Nepali nation in a proud
Nepali country. Difficult times demand difficult
measures, a deeper commitment, and a population
that stays calm and sensible. Give the assembly a
final chance to complete its task.
The
functioning of democracy demands continuous
discussion that addresses all dissenting voices.
The Nepalese people have every right to know what
is proposed and how they can challenge those
proposals. The final constitution of Nepal must be
recognized as people-owned. Otherwise the people
will challenge its legitimacy and authority from
the very outset.
Speaking Freely is an
Asia Times Online feature that allows guest
writers to have their say.Please
click hereif you are interested in
contributing. Articles submitted for this section
allow our readers to express their opinions and do
not necessarily meet the same editorial standards
of Asia Times Online's regular contributors.
(Dr Gyan Basnet, who holds a
PhD and an LL.M degree in International Human
Rights Law at Lancaster University, UK, is a
columnist, researcher in International Human
Rights and Constitutional Law and an Advocate in
the Supreme Court Nepal. Email:
gyanbasnet@aol.com)
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