By Dr Gyan Basnet PhD
Nepal was plunged into even deeper political stalemate when the Constituent Assembly (CA) failed to address the controversial issue of federalism and missed the fourth deadline since its establishment in 2008. A few weeks ago, the major political parties, after failing to agree on the reinstatement of the dissolved assembly, opted to go for a fresh CA election. It puts them back to where they were in 2008, and their political progress backwards continues. If the parties are serious about their new election decision, it is bound to have a profound effect on the country’s political future.
At the time, nine fringe political parties joined forces with the Mohan Baidya-led CPN-Maoists to oppose the one-sided decision of the four major political parties. They concluded that the decision was unacceptable to them and that it could not be binding on all. Some serious questions need to be asked today. For instance, had the political parties attempted to resolve all earlier contested issues on the constitution before they decided to go for a new CA election? Moreover, when will this country see an end to national issue decisions being taken by the hegemony of just a few leaders? Are the four political parties the only parties that count in Nepal?
There is no record anywhere in the world of a second time elected CA producing a new constitution. Can they in Nepal then seriously afford the risk of electing a second CA? What guarantee is there that a new one will be any more able to produce a new constitution than the last? What happens if it, too, fails? Shall they repeat the history of the defunct CA over and over again? The bitter truth is that any new CA will comprise the same politicians, leaders and faces as the old one. Can they expect them to have new and clear manifestos, policies and programmes with which to approach the electorate?
The primary role of a CA is to draw up a constitution, and the CA route is the most common mode of constitution making. However, they have already failed to achieve a constitution through the defunct CA, and there is no guarantee that they are going to get one from a successor. To remove any doubt, therefore, if the political parties really are serious this time, they must employ extra care and extra preparation before even approaching the electorate.
There are some relevant points that I wish to make. Firstly, the totalitarian approach of the present Maoist-led coalition government has landed the nation in an unprecedented political crisis. That government does not have the moral authority to conduct any new election. They need a new nationally elected government comprising all the political forces in the country. The present unconstitutional government should not continue in power but should pave the way for a national consensus by stepping down as early as possible. It is itself the chief obstacle to any national consensus, and the prime minister should resign.
Secondly, the political scenario within their country has become more complex since the demise of the CA. Ethnic-based politics has emerged recently, and their society has consequently become even more divided. The political parties are now more vulnerable, and the major political parties have already become fragmented. In the aftermath of the proposed election, the debate over earlier contested issues on the constitution will surely become more extreme. Before any election, therefore, it is vital that a workable programme is drawn up and a basic agreement reached between the political parties on the contested issues. Otherwise at the end of the day, the outcome of any new CA could be fatal for their country.
Since their political scenario has changed totally since 2008, no one can now predict the result of a new CA election. This is especially so since the fracturing of the largest Maoist party and the desertions of ethnic background leaders from the Nepali Congress and Communist Party of Nepal United Marxist Leninist to join a newly formed ethnic-based party. The political parties must, therefore, reach a fresh agreement on the process and procedures for the new election. They must resolve the on-going political stalemate and forge a consensus on the constitution that is to be drawn up and the subsequent electoral process and formation of a new government. Some co-ordination among all the political parties is absolutely essential in order to resolve the current political deadlock.
Thirdly, constitution making is often a divisive process since it is profoundly political. It amounts to a dialogue not only about political power but also about societal values and institutions. It is political, too, because it involves individuals and groups who are jockeying for power. It is about tactics and strategies, and it can involve obstruction and sabotage. Over the years many constitution making processes have failed to produce a new constitution.
Their new constitution will have to encompass the future structure of government, how communities will relate to that structure, and other critical social issues. Although constitutional negotiations are viewed as the means of resolving differences, the fact is that there is so much at stake that the process can itself be deeply divisive. In the new CA the great confrontation between the political forces will again feature over the issue of federalism, the system of governance, etc. The political parties must, therefore, go some way to resolving these issues before they fix a date for the CA election.
Finally, there is hope always that the constitution will be achieved by democratic process. Democracy involves an affirmation of the ‘equal sharing of activity and power’ by all citizens. According to Antonio Negri: ‘To speak of constituent power is to speak of democracy.’ Democratic legitimacy demands that citizens are permitted to become the authors of their own constitution. Civil liberties, freedom of information, a free plural and independent media, a robust civil society and associational life are widely recognized as important elements of the democratic public sphere. Access to official information, supported by a public culture of transparency, is often forgotten but is equally vital. They the people of Nepal, as citizens, must possess the information needed to hold their elected representatives accountable for either specific policies or for legislative and constitutional processes and outcomes.
Accountability and transparency must always be understood to be in the nation’s interest. Their new constitution must be pro-people and dynamic; it must be people-owned; and it must address the needs of generations to come.
Constitutional theory has always concerned itself with seeking to defend the democratic legitimacy of constitutional regimes, not to challenge that legitimacy. Just as democracy and the constitution making function operate within a boundless landscape so a constitution is never finished: it is ever an on-going political process.
The making of some contemporary constitutions in the world was so significant as to mark the ending of one epoch and the start of another. However they manage to achieve it, let them hope that their new future constitution is able not only be pro-people and dynamic but to be epoch making as well.
Dr Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Prominent Columnist, Researcher in International Human Rights Law and a Human Rights and Constitutional Law Lawyer in the Supreme Court and Subordinate Court of Nepal. Email: [email protected]aol.com.