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Nepal: Righting Historic Wrongs – OpEd

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Across the country people have been keen to offer feedback on the preliminary draft of our new constitution despite several incidents of disruption and vandalism. It seems that many people are excited by recent political developments, and the hope of the nation is that the constitution can bring to an end a decade of political deadlock.

On the other hand, from the very outset, a large part of the population and of the political forces have been demonstrating against the draft arguing that it is not inclusive and that it does not represent the values and sentiments of all segments of society – most importantly, that the draft reflects only the interests of a few political parties and their bosses. Strikes are being called, and protests, vandalism and disruption are affecting every corner of the country.

In such political circumstances, many questions must be asked. Have we allowed enough time for public debate on the new draft? Can the new constitution resolve all existing problems? Can it complete the peace process? Already we are seeing popular dissatisfaction with the draft on the streets, in public forums, in the media and on social media. What is wrong with the draft or how did it go wrong? How can the constitution be sustained if many wish to tear it up even before it is published? It is time for us to take the issue seriously. What, for instance, do we, as a nation and as a people, really want from this constitution? Will it be able to curtail mob rule and the monopoly of a few? Or will it not open the new Pandora’s Box? This article seeks to raise many important questions regarding the draft against which the quality and the legitimacy of the document can be judged.

Firstly, every constitution in the world is founded upon certain principles and norms. For each it is about process and outcome. Was our process of drafting correct? Did our so-called politicians follow the basic principles, norms and rules for such drafting? Did the Constituent Assembly have enough power to discuss the document thoroughly or was the process dominated, as in the past, by a few fat cat politicians of the four major parties?

A constitution is more than just a political document. It is more than just a governmental instrument of instructions, and it is more than political bhagbanda. It must reflect the interests of the population as a whole. The constitution itself represents and belongs to the people. It is the supreme instrument for the running of the nation, and it represents a vision not only of how we wish to govern ourselves today but of how future generations should do so too. It should be about protecting our own future and the future of our children.Therefore, a constitution, as a living document, should provide a vision anda legal parameter for where and how we aim to be even after another five decades in terms of social, political and economic development. It should also be a vision of how we wish to see our nation’s standing as an independent state in the 21st century.

The big question is: does this draft present that kind of vision? Does it cover the social, political and economic needs of the people of today and tomorrow? Does the draft provide answers to these questions?

Secondly, what is a good constitution in itself? What are the basic features of a ‘quality’ constitution? The present draft must be judged by both its content and its quality.Is it comprehensive? As the supreme law of the land, does the draft constitution uphold the ideals of equality, freedom, and justice? Does it adopt and accept the principles of constitutionalism? Is it well written and flexible and provide for bills of rights, the independence of the judiciary, etc? A constitution must be the basis of freedom and freedom must be given the rightful definition. It is the only safeguard for our liberties, dignity and fraternity. Does the draft provide fundamental freedoms for its people? Constitutions have for centuries been celebrated for granting power to the powerless, voices to those voiceless and a strong weapon to those oppressed and marginalized. Is this draft document capable of empowering any of our powerless, voiceless or marginalized citizens?

Thirdly, public debate and consultation with all sectors is very important for the greater legitimacy and public acceptance of any constitution. Broad participation while drafting the constitution is the paramount necessity for the durable sustainability of any law that it subsequently gives rise to. Writing a constitution is itself a broad political process among different political forces. It is about give and take, and it is about sharing values, visions, respecting each other and most importantly sharing the future among the citizens. Did the drafting of this constitution allow such broad political participation? Did we give enough time for public debate and consultation, and did we fully take note of opinions expressed?

The nation has already spent many years, resources and energy drafting the new constitution. Precious time has been lost, but the crucial requirement is not that time and money have been spent but that a good constitution based on values is the ultimate outcome. We do not expect a constitution that is hastily put together or one that is no more than a copy of another.Our new constitution must come as a genuine solution to our problems of the past, and it must adequately represent all sectors of our society.We are told that the new constitution will be promulgated by the end of this month. Shall we then have enough time to consider its content and to inject public opinion and comment into the final draft? Otherwise why is this happening? Why are we rushing at the end?

Finally, a good constitution should reflect the immediate history, culture and traditions of a nation. We must learn from the past. Bad practices must be denied and good traditions continue. Our generation has suffered from the political mistakes of our forefathers. We must not make the same mistakes and allow our coming generation to suffer equally. We must make sure through this constitution that the next generation will not need to fight for political change or for yet another constitution. We must well and truly secure their democratic future through this constitution. Have we fully considered our past constitutions and our past experiences of what went wrong with those? What were the lapses and gaps within those past constitutions? Have we learnt from the failure of the last constituent assembly or from the failure of the political parties and, most importantly, from their leadership? The final document must emerge as the bridge that brings together the various castes, creeds and other segments of our society. It must emerge as powerful glue that sticks the already divided society together. It must emerge as the healer of centuries-old social wounds, divisions and disparities. Does the present draft offer these?

The righting of historical wrongs is most vital for any new constitution.All constitutions are work in progress, and none is  perfect. No matter how well it is written, none can guarantee success. Rather it is our attitude and, most importantly, our greater political commitment and political sincerity that can make a constitution effective, productive and turn lofty ideals into reality.The constitution is the means by which we show how we wish to govern ourselves. We must use this unique opportunity to correct historical mistakes – if not today, then when? Let us pray that the new constitution will come to be celebrated as anew birth of freedom and nationhood.

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Dr. Gyan Basnet

Dr. Gyan 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, Lecturer & 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]

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