The US Constitution was written in 1787 after a constitutional convention, where the specifics of federalism were heavily contested. The federalists wanted key powers to be vested in a strong national government while the anti-federalists wanted states to retain most of their authority. Following intense negotiations, compromises in the design of the legislature ultimately created the impetus for a draft constitution. As one of the first exercises of federalism then, at least nine of the thirteen state legislatures had to decide whether they wanted to approve a constitution that conceded some of their powers to a centralized federal set-up.
The anti-federalists published newspaper articles to sway public opinion and pressurize legislators to reject the constitution. The federalists retaliated in the form of 85 essays in support of the constitution. Published in New York, these papers sought to not only gather momentum to ratify the constitution but also provide a vivid basis for its interpretation and understanding. This led to intense and widespread discussion of the meaning, interpretation and future implications of the new constitution, and even today serves as the foundational basis for constitutional debates.
Having just fought the British monarchy, the Americans were keen to prevent the rise of an internal monarch. As a result, the constitution begins by laying out in stark terms the balance of power between the legislative, the executive and the judiciary. At the institutional level, this balance is maintained through a triangulation of rights, responsibilities, and duties between the three branches of the federal government. Wary of the possibility of personality politics hijacking institutional and national goals, the set-up specifies two fixed terms of four years for Presidency. Division of power between the centralized federation and state mechanism was at the core of the constitutional debate. These debates continue to the day, proving that such negotiations are not outcomes but processes that play out in different ways over time.
Interestingly, Nepal’s case is not too different from some of the challenges the US faced— the legacies of a defunct monarchy; the dangers of personality-based, dynastic politics and the structure, function, and compromises between various hierarchies of governance at the local, regional, and national level. The intention here is not to overplay the similarities because there is no doubt that significant differences also remain. Nepal has only just emerged from a bloody civil war, identity politics most notable in the form of ethnicity remain central to any negotiation on the power paradigm and the possibility of a timely constitution seems dependent more on the constraints imposed by the courts than on the commitment of influential ideologues with the nation’s interests at heart. Clearly lacking are processes of public information and consultation, so as to engage the people for whom, and on whose behalf, the constitution is apparently being written.
Alexis de Tocqueville, in his seminal book on American democracy, has noted the history of public consultations in the US. When the Puritans arrived in New England, they brought with them a culture of town hall meetings, which Tocqueville attributes as the precedence for engaged politics there. The culture of small towns allowed for the immigrants to gather and discuss pertinent issues of the time, providing for the necessary space for political action and sustained engagement.
A contemporary example of political engagement can be seen from the culture of ‘MP surgeries’ in the UK. The UK is unique in that it does not have a written constitution. There is no written code of conduct for the Members of Parliament (MPs) either, but most MPs hold ‘surgeries’ once every week or two weeks in their constituencies. These ‘surgeries ‘provide people the opportunity to voice their concerns and expectations, ultimately holding their representatives accountable for their actions. The main reason MPs feel compelled to hold these activities is because of the power of electoral democracy in the UK and the fear of being punished in the next election. For the same reasons, MPs also take particular notice of the numerous letters they regularly receive from their constituents. These consultations have allowed for continued engagement at the local level, even as people might be frustrated with the political mainstream.
The ‘Ubudehe’ process in Rwanda has taken public consultation to another level. The Rwandan word refers to ‘the traditional practice and culture of collective action, mutual help and reciprocity to solve community problems’ (Shah, 2011). In today’s context, this process has sought to promote local level democracy and active citizenship in the country. Ubudehe has become a participatory process through which people come together to identify issues or problems they want to address, represent them visually in public spaces (such as charts or drawings on large white sheets hung in the centre of the village), hold continued deliberations and debates, generate data to find solutions and collectively secure and direct funds in the right direction.
While the government funds the programme, people now own the process and encouraging signs in the last few years suggest that democracy is flourishing in the grassroots even as the democratic credentials of the national government come under continued questioning. This description is not to romanticize Ubudehe unconditionally because clear problems with local power dynamics and politics of delivering collective action remain. However, the process highlights the possibility for sustained, local level political action and engagement.
I have argued before for the need for sustained political engagement and public dialogue, particularly at this crucial moment when the constitution is being drafted. The initial constitution timeline had set aside two weeks for public consultations, where our CA members were expected to return to their constituencies and deliberate publicly on the key issues. However, when it became clear that the constitution would not be promulgated on time, this was one of the first processes to be scrapped. Subsequent time extensions did not result in bringing in these consultations, leaving the general populace out of the discourse. While most of the nation appears anxious that the CA will not finalize a constitution by next month, I am more worried that the CA will in fact finalize a constitution without local level engagement and public consultations, leaving a significant information vacuum among the people. Despite years of ‘negotiations’ and ‘compromises’, we are now knocking on the deadline and yet all the important decisions regarding integration, balance of power, and structures of governance remain to be determined, and are expected to be taken miraculously within the next one month.
Despite much to learn from abroad about public engagement in a democracy, our constitution drafting has left out the very people whom it is meant for.
Nepali people at large have been left of the framework. The CA has hardly engaged in constitutional dialogues like the delegates did in the US many centuries ago. The politicians have barely deliberated with each other publicly in the form of papers or wider public discussions on the details of the constitution. The MPs have not had briefings in their constituencies. The government does not seem to have supported grassroots engagement through processes that bring people together to identify and solve their own problems, visibly and publicly. Amidst the outcry about democracy and public engagement, there is so much to learn from abroad and within, and yet our political processes continue to ignore the very people they claim to speak for and represent.
The constitution should not serve as a concrete monolith but a starting point for an inclusive democracy that goes beyond electoral politics to everyday, localized consultation and engagement. Perhaps it is not too late yet. When the constitution does get completed, the CA should not act as judge and jury by both drafting and ratifying the constitution immediately. Instead, once completed, all CA members should be made to return to their constituencies to debate and discuss the finer details of the constitution so that it is not an imposition but a democratic, inclusive, and comprehensive document that reflects the will of the Nepali people.
The author is D. Phil. Student in International Development, University of Oxford, UK
shrochis@gmail.com
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