The constitution-making exercise calls for the highest statecraft. It is a special, rare and highest form of political activity. It is an uncommon and unique occasion in the history of a nation to frame a constitution. Being so special, it is essential that those entrusted with the task should be conscious of their great role and importance of their assignment.
Basically, constitution-making is an exercise in democratic empowerment. It can contribute significantly to nation- or state-building. Experiences from other countries tell us at least two things: First, a sound constitutional framework is considered very important for an emerging democracy, and great investment of time, and utmost efforts, are devoted by scholars and statesmen. Second, it is a rare opportunity to constitution- and peace-builders in a post-conflict situation to write a new constitution, an immensely difficult task.
Renowned constitutional experts like Thomas Cooley and Alexander Hamilton had stated long ago that “the task of constitution-writing is essential to the building of new nations on the basis of ‘reflection and choice’ rather than by ‘accident and force’.
For commoners, a constitution may simply mean basic laws relating to the governance of a country. Normally, it defines various organs of the state and enumerates their functions and demarcates their fields of operation. However, a modern constitution, by and large, is more than that. It is the vehicle of a nation’s progress. It has to reflect the best of the past traditions of the nation. It also has to provide a considered response to the needs of the present and possess enough resilience to cope with the emerging challenges and demands of the future. It must not only wipe out the tears of thousands of deprived people, but also be able to offer and assure smiles to the people by securing peace, and paving a path for their progress and prosperity.
The constitution-making exercise calls for the highest statecraft. It is a special, rare and highest form of political activity.
Eventually, every citizen of the nation must feel allegiance to the document and own the charter as guarantor of his or her basic needs and rights. In a country of immense diversity like Nepal, the constitution should be a national charter of unity in diversity. The diversity is well reflected in the sovereign Constituent Assembly (CA) of 601 elected members.
We all understand that a modern constitution has to be a living document; living not for one or two generations but for succeeding generations of men and women. For the first time in Nepali history, we have succeeded in peacefully transforming the country from a monarchy to a democratic republic. Furthermore, we have successfully held the CA elections as a part of constitution- and peace-building process. But, lately, due to power struggles and tussles among political parties, to consolidate their respective party interests, it appears unlikely that the CA members will be able to complete their task to draft the constitution as a consensual document within the stipulated timeframe.
It would be unfortunate if the CA fails to produce a constitutional framework before the end of the constitutional deadline. New challenges will emerge in such an eventuality. But political parties have not been sincerely deliberating on issues and implications that the nation may confront if they fail to live up to the popular expectations.
A huge challenge lies before us to establish peace and justice through a democratic order, rule of law and democratic constitutionalism. The new constitution should create a basis for Nepal and the Nepali people to ensure unity in diversity, and pave a roadmap for establishing sustainable peace and prosperity. As the principles of democracy, rule of law, human rights and social justice are universal, the fundamentals of constitutionalism cannot be confined to any state’s boundary. Institutions like independent judiciary and free press are the essential watchdogs to protect and strengthen constitutionalism and democratic values.
A new constitution should not only mean the emergence of Nepal as an inclusive, secular state; it should also provide clear avenues for conflict transformation, restorative justice, reconciliation, development and efficient leadership. If we cannot incorporate these principles in the new constitution, we will not be able to make a democratic constitution that guarantees not only political rights and freedoms but economic rights and opportunities as well. The ambition of the greatest men of our generation has been to wipe every tear from every eye. That may be beyond our reach, but as long as there are tears and sufferings, our work will not be over.
It must be remembered that the constitution-making process is also a state-building process. In the words of Professor Francis Fukuyama “state-building is one of the world’s most important issues for the world community because weak or failed states are the source of many of the world’s most serious problems” including poverty, lawlessness and terrorism, which, according to him, is caused mainly by a “weak, incompetent, or nonexistent government.”
Economically-advanced world community has a challenge before it to prescribe ways to transfer their knowledge about state-building. Many of them don’t know ‘how to transfer strong institutions to developing countries’. Professor Fukuyama honestly admits: “We know how to transfer resources across international borders, but well-functioning public institutions require certain habits of mind and operate in complex ways that resist being moved.” This is exactly where the real problems lie.
The perception and understanding of state-building from the Western perspective need to be revisited in order to address the issues and problems of post-conflict countries. They have to restore democratic institutions to rebuild nation and accelerate the pace of development not only to meet the basic needs but also to put the nation on the track of progress so that the younger generations in future may be able to work hand-in-hand and also compete with the youths of the Western world. Our vision of the new constitution must therefore meet the requirement of the future while addressing the challenges of the past.
(Writer is Member of Constituent Assembly & Nepali Congress Central Committee Member.)
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