Own it

The new constitution carries the aspirations of millions of Nepalis who voted in CA elections

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Nepal has promulgated a new constitution, possibly the longest anticipated political and legal development in decades. The country could have gotten a constitution through Constituent Assembly (CA) when democracy was first institutionalized 65 years ago. A new constitution approved by elected representatives has finally been enforced after eight years of strenuous constitutional exercise.

Social media has been dominated by feedbacks on constitution. Among several constitutional issues that have received attention, democratic functioning of the CA is one. In particular, debates on supporting or rejecting the new constitution are all the rage. Hashtags such as #NotMyConstitution vs. #I_support_constitution, #MyConstitution vs. #RejectConstitution are common. The constitution process was not democratic, it's said, as it left out key voices. Women's demand for equal right in terms of providing citizenship to their children and demands of ongoing Madhesh and Tharuhat Andolan that led to the death of 44 Nepalis are glaring examples.

On occasions, political analysts and international community have raised questions about the democratic nature and functioning of CA; arguing that the new constitution will not be widely accepted. However, the new constitution will be the first ever purely endorsed by democratically elected representatives.

Likewise, the CA Committee on Citizens Relation and Public Opinion was earlier mandated to collect feedbacks on draft constitution. The Committee held public consultation in all 75 districts for 15 days in July. The Committee reports that all together 184,674 people participated in such programs and gave 153,193 suggestions on substantive provisions of draft constitution. Altogether 33,753 suggestions were also collected via email, fax, and telephone calls.

The new constitution carries aspirations of millions of Nepalis who voted in two CA elections. Through their feedback, almost 1 million directly contributed to the making of democratic constitution.

The CA formally certified the new constitution incorporating feedbacks from public. A constitution is a negotiated political-legal document. Many substantive parts of the new constitution were endorsed after bargaining among political parties. A constitution is also recognized as a living document. It allows for debate and changes in the future. Indian constitution was made by the CA in 1950, and it's still being amended.

Indian constitution suggests that no constitution is perfect ab initio. That's why every constitutional design provides spaces for future debates. This is true everywhere. Even our new constitution has recognized this, guaranteeing that there will be space for constitutional discourse and amendment.

Had there been no space for constitutional discourse in the US Constitution—which has been amended only 27 times in its 228-years-old long history, making it one of the most rigid constitutions in the world—issues such as same-sex marriage would never have been recognized by the US Supreme Court.

If we observe our constitution making process of last few days and to be precise from September 13-16, it was a miracle. It could have been derailed by: a) ongoing Madhesh and Tharuhat movements, b) prolonged transition, c) thorny issues such as federalism and secularism, and d) challenges of bringing disparate political parties together. The future of the CA II was uncertain. However, it overcame many of these challenges.

A constitution's fate is determined by the norms and values it recognizes and how they are enforced. The new constitution has also recognized such norms and values. Although there are outstanding issues, if these issues are legitimate and if they concern public good, they can be recognized in new constitution. It seems those who oppose the new constitution have perceived it as an end. Rather it is a means, means of transforming lives of people. This is the truth.

Nepal has lost important time and resources. Now that the constitution is at hand, let's welcome it. If we want to progress, let's own up this document. It's not just an appeal: I believe it's our right and duty. Preamble of the 2007 Interim Constitution entitled us with the right to make a constitution. We participated in the CA elections, elected our representatives and now CA members have fulfilled their duty. It is now up to us to own and defend this constitution.

The author is an advocate and lecturer of law
Twitter: @pokharelalok