The political drama being played out in Kathmandu—which culminated, on May 27, with the dissolution of Constituent Assembly (CA) in disgrace, could perhaps be best captured by the word boondoggle.
Webster’s has two definitions of this word—related but separate. The first is “the pursuit of an activity or project that is unnecessary and wasteful of time and money”. And the second: “politically motivated government project of little practical value, funded to gain political favor”.
For the start, there is no denying the fact that a functioning constitution is an integral part of the state apparatus which commits a democratic government to operate within the bounds of pubic mandate.
Then what is this public mandate? In my view, the mandate is for switching from monarchy to a republic and that the terms of republican constitution are to be defined by leaders who led the revolution and those who supported it.
Of course the underlying strengths of these leaders flow from their grassroots support but public, for the large part, was not involved—either in initiating this revolution or taking risks and making sacrifices to bring about this scale of change. The vast majority of people played a neutral part in this endeavor or, at their best, trusted their leaders to bring about certain changes.
This then follows that people need not be directly involved in the constitution-making exercise and, if public approval is at all needed, this can be obtained through voting or in a referendum on draft constitution that is presented to them for a yes or no vote.
A VISIONARY DOCUMENT!
The great constitutions of the world—the US, India, Japan, and, during recent decades, Turkey, Greece, Spain—aren’t the outcome of person-to-person pulse-taking or of debates in constituent assemblies, which was what was being tried out in Nepal. In almost all cases involving transition to democracy, constitutions were drafted by leaders of the revolution (Founding Fathers in the US) or constitutional experts working for people who led the revolution (India).
Applying this logic to our own situation, the new constitution should reflect the vision and wishes of Maoist leadership who were the first ones to seriously think of an alternative to monarchy and who led a decade-long rebellion to pursue their objective. At the same time, Maoist leaders must admit that their revolution fell short of a full victory, because of the compromises they made with other party leaders.
It then follows that leaders of the revolution—original as well as latecomers—should have sat down immediately after the success of their revolution to work out a draft document—call it a mini-constitution—that would have explained the genesis of the revolution to the public and presented a road map of governance. This road map would be a guide for inclusion of the basic purpose of the revolution at a later date in a much fuller document, prepared by a team of experts. Such a document—a full-fledged constitution—would have enshrined the revolution’s goals and established legal standards for the new administration to abide by.
All this work could have been completed in a month or two, which would have sharply cut down transition time and allowed new leadership of the country to launch reforms and carry out programs that justified the change of regime.
Unfortunately, six years following the revolution has been a complete waste of time and of money and there is no end to it. As a matter of fact, the CA exercise has been a complete fiasco, since it did everything that it was not supposed to—power grab and living-off public dole—and very little of what it was required to—deliver a constitution. Looking at four years of its life, there is no evidence that it voted on and passed a single piece of constitution-related item or took an initiative to explain to the public what hindered them from making progress.
NOT THE CA AGAIN!
The correct approach to writing the constitution and, generally, making decisions on the policies of national importance was attempted towards the end of CA’s term, when top leaders of the three major parties—UCPN (Maoist), NC, and UML—got together to strike a grand bargain on the most contentious issue of state restructuring.
The only mistake they made was of leaving out other stakeholders who should have been party to the compromise; at the least, they could have invited large Madhesi parties for negotiation. Politics is a game of compromise and, with the looming demise of CA, it was in everybody’s interest that a bargain be struck in a way that no side felt excluded or ignored. It is in human nature to maximize gain with least amount of pain and not to take great risk when the outcome is uncertain.
The major parties should commit to a draft constitution within a month, with provision of agreement on big issues at a later date.
Assuming that party leaders were putting up honest effort to break the last-minute impasse, they could have started with agreements on just a few salient features of the constitution—no more than a dozen of them, written on just a single page. In this way, they could have made a convincing case for a three-month extension of CA’s term, an idea some of them had floated earlier.
The next step would have been for party leaders to sell the idea of compromise to other senior leaders and go directly to the people to explain what they have accomplished. Party discipline requires that president or chairman of the party makes decisions on party’s behalf. Of course, when they need to make decisions that are unpopular with party cadres, the party bosses are likely to face some flak, but it is unlikely that the compromises reached at interparty level would be rendered null and void.
Looking back six years—after the technical abolition of monarchy in April 2006—party leaders could have agreed on a draft constitution, with the provision that this be ratified by an elected body—parliament, not constituent assembly—when it takes office after the election.
Instead of pursuing this simple, inexpensive, and sensible path to constitution-making, we embarked on an immensely complicated, horribly expensive, and absurdly illogical approach. In fact, the existence of this unwieldy conglomerate of six-hundred plus rank-and-file party loyalists with little knowledge of constitution-making rendered the whole task of constitution-making absurd and improbable from the very start. Why would anyone expect that CA would be any different in its second incarnation?
The most sensible and practical option would be for the major party leaders to commit to a draft constitution within a month or two, with the provision of agreement on big issues at a later date. This list of big issues will involve no more than a couple of dozen subject areas, consistent with the republican spirit. Such a document will serve as a guide for constitutional experts who would later work out necessary details to make the constitution a workable document for legislature and courts. Since the constitution is a visionary document—similar to religious epic—it would be unnecessary to put this up for a vote—in parliament or through a referendum.
The author teaches economics at various colleges in the US
sshah1983@hotmail.com
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