Problems facing Constituent Assembly

By DR KHAGENDRA N SHARMA

http://www.kantipuronline.com/kolnews.php?&nid=160296

It has been four months since the Constituent Assembly (CA) was formally announced. But not a single word of the constitution has been written yet. It is true that the country was declared a republic in the first session of the CA, but it was just a formalization of a decision already made by the Interim Legislative-Parliament. So, the CA cannot claim the credit for the termination of the monarchy. The CA has created the posts of president and vice-president of the republic, but it is still an interim arrangement and the powers and functions of these posts will have to be redefined in the context of the new constitution. Thus, the whole function of writing a new constitution remains unattended.


There are two different types of problems facing the CA and both of them are of a serious nature. The first problem consists of the processual aspects of the constitution making -- the how part of it. It is reported that some rules have been finalized regarding the processual aspects like forming different committees through which the ideas will filter culminating in the provisions of the constitution. Much time will be needed to pass through all the committees. Apart from that, ample field work will have to be done to ascertain and analyze the views of the people at the grassroots. These ideas will have to be articulated thoroughly in the CA and placed in the hands of skilful constitutional experts to convert into appropriate provisions of the constitution.


The CA has been too large and unwieldy a body to articulate issues effectively and make decisions collectively. This aside, the CA has also to function as the Legislative-Parliament. It is a pity that the legislative part will consume a significant portion of the two years time in which the constitution has to be completed. So, the CA will have only a small part of the allotted time.
Given the fractured coalition, there will be numerous differences of thoughts among the parties, both within and without the coalition partners. The incongruous make-up of the fractured coalition will be naturally reflected in the CA. The decisions are expected to be unanimous in an ideal situation, but it is very unlikely in the present situation, given the protracted bargaining in the whole political process. So, decisions are expected to be made, if at all, simply by the required two-thirds majority.


The second problem is substantive, subject-matter questions pertaining to the various aspects of the body of the proposed constitution. These problems are so serious that it is inconceivable that the constitution can be made in the limited given time. The most problematic and difficult issues are those regarding the restructuring of the state. It has been promised that Nepal will be a federal state. Sentimentally, it is a fine promise, but there is no uniform concept of the federation. Before and during the CA election, all the parties talked of the federal structure for future Nepal, but no party except the CPN (Maoist) had even a vague concept of the proposed federation. The Maoists had proposed a distinct federal structure, but it has raised more questions than probable answers and it will be difficult to sell the concept to all the parties for the following reasons.


The Maoists had raised a general awakening among the masses for the concept of the federation during the decade-long conflict, but the concept was understood, articulated and popularized by different communities very differently during the interim period leading to the CA election.
In most of the cases, there has been ethnic orientation, but language had also played a big part in sensitizing the people. If these two criteria are accepted as the basis of federalizing the state, then there will be more than a hundred units to be federated. That will be simply unimaginable. Then there is the bigger criterion of space or geographical divisions. But geography does not go by homogenous ethnicity, linguistics or cultural factors.


The tarai movement has strongly voiced the concept of one Madhes. It has raised several potentially dangerous issues. If the topography of the country is to be taken as the criterion of breaking the state, there will be three major types -- the flat plains, the high mountains and the moderate hills in the middle. Taking cue from the Madhes call, the communities in the high mountains have already started to make claims for a mountainous state all along the north. The mid-hills have not yet raised such a demand but given the logic, it is in the pipeline. Thus, physically there will be three units to be federated. But this logic will negate the other more applicable criteria of ethnicity and linguistics.


Ethnically, too, there have been various claims, with the Limbuwan claim being the loudest. It has even started to have a parallel government in the east. In the name of ethnicity, it has overstepped into another ethnic jurisdiction in the south.

Similarly, the call for one Madhes oversteps several ethnic communities with distinctly different cultural, linguistic and other forms of identities inside the flat tarai itself. One basic flaw of the ethnic or linguistic logic is that several communities have no specific territorial base and are spread throughout the country. The basic flaw of the geographic logic is that it ignores the other vital social criteria of ethnicity, linguistics and cultural identity.

If the issue of an acceptable federal structure is arrived at, there will be several issues of distribution of power and resources. Too much of power in the centre will be resented by the units and too much of power in the units will result either in a weak nation state or it may lead to tendencies in the units to secede from the nation state. Making adequate safeguards will require great national perseverance before the constitution is finalized.


Another major issue to be resolved in the new constitution is the question of fair representation. There are over a hundred different communities -- large or small in size -- but with distinct identity all the same. All will have to be satisfactorily accommodated. This issue is different from the ethnic or geographic issue: it refers to issues of gender, minority, marginalized groups, under-representation and so on. These issues have been voiced very vociferously, without arriving at a suitable solution during the interim period.


Apart from the division between the units and the central state, there are serious issues regarding the form of government: whether Nepal should adopt a parliamentary or presidential form of government both at the central and at the unit levels. If it prefers to have the parliamentary form, should the parliament retain control over the executive or should the PM have the power to dissolve the parliament and hold fresh election as in the past? If Nepal should have a presidential form of government, how will the president remain accountable to the parliament?


The above is not an exhaustive list of serious issues, but the purpose of this writer is to indicate how serious is the work ahead. From the way the CA has been moving, one can suspect that a wholesome product of a constitution can be accomplished in the given timeframe of two years out of which more than four months have already elapsed without framing a single article of the constitution.

Time is an important factor, but even more important factor is the seriousness in the leadership of the big parties which are still struggling to establish supremacy over each other. If this wrangling is not stopped, the sovereign people may again give a clarion call for another political uprising.