Constitution Writing And Its Hurdles

Yuba Nath Lamsal

The constitution writing process is in progress in the Constituent Assembly. On the surface, all political parties seemed to be serious and committed to completing the constitution writing process within the calendar fixed by the Constituent Assembly and having it promulgated it by the end of January next year. However, it is still not certain that the constitution will be delivered within the period of one year since the first meeting of the second Constituent Assembly was held.  The political parties had promised during the second Constituent Assembly election held November last year that they would deliver the new constitution within one year.

 So far, the Political Dialogue Committee of the Constituent Assembly, which has been mandated to resolve all the contentious issues concerning the new constitution, has settled more than 90 per cent issues, most of which are non controversial upon which agreement had also been reached in the first Constituent Assembly. However, the first Constituent Assembly saw its unceremonious demise as parties failed to agree on two key issues namely federalism and the forms of the governance. Despite some reservations, political parties had compromised and agreed on the forms of government as well and it had been agreed for a mixed type of governance model, which is akin to French model with directly elected president and Prime Minister to be elected by parliament. However, parties continued to lock horn on the nature of federalism and number of federal states.

Even now almost all issues have been finalized. Political parties have demonstrated some degree of flexibility on the form of governance. Now only one contentious issue is left that is concerning federalism. This is exactly the similar situation that prevailed prior to the dissolution of the first Constituent Assembly. Now this is the time of crucial test for political parties how they pass this test and deliver to the satisfaction of the people. Only time will tell whether parties will live op to popular expectations and pass in the eyes of the people.

The political parties have, in principle, agreed for federalism. The Interim Constitution has clearly stated that Nepal will be a federal democratic country, which means the parties cannot return to unitary form of state. But different parties have different agenda and stance on the issue of federalism. The UCPN-Maoist claims to be the mother of federalism in Nepal, which is true to certain extent. It is the UCPN-Maoist that first raised the issue of federalism and it pushed this agenda so vigorously that other parties, too, had to ultimately agree on this issue. The Nepali Congress and the CPN-UML were not prepared to accept federalism in the beginning as they were of the view that small country like Nepal did not need federalism. However, the Maoists made federalism as their prestige issue, which was later accepted by the Nepali Congress and the CPN-UML to end armed insurgency.

The Nepali Congress, CPN-UML and the Maoists were the principal political forces during the Jana Andolan II that overthrew king’s absolute regime heralding a new era of republican set up, federalism, secularism and inclusive democracy. The Nepali Congress and the CPN-UML had definitely made sacrifice, to some extent, even by compromising some of their ideals and stances to herald this situation. Until then the Nepali Congress had been a monarchical party that supported constitutional monarchy. Democracy and constitutional monarchy had been two fundamental pillars of the Nepali Congress ideology. Nepali Congress had to abandon the agenda of constitutional monarchy and embrace republican system after the king repeatedly betrayed the country and people.

Being a communist party, the CPN-UML is a republican party and its agenda had always been a republic system right from the beginning. But it accepted constitutional monarchy in 1990 as a compromise for political change because the Nepali Congress until then had been staunch supporter of the constitutional monarchy. The CPN-UML happily accepted the republican set up in 2005 when the seven party alliance and the insurgent Maoists reached an agreement to start peace process in Nepal. But federalism was still not its agenda.

The 12-point agreement reached between the seven party alliance and the insurgent Maoists was a compulsion as both sides had to compromise certain things. The seven parliamentary parties were so desperate and helpless that they were prepared to do anything to teach the king a fitting lesson. Their anti-king demonstrations had very little impact on the streets. Leaders of the Nepali Congress and the CPN-UML in general and Girija Prasad Koirala in particular had arrived at a conclusion that their strength alone was not sufficient to bring down the king’s regime and restore democracy.  And they thought that it was an opportune time to have an alliance with the Maoists that would kill two birds with one stone. The 12-agreement reached between parliamentary parties and the Maoists served two purposes simultaneously as it succeeded to overthrow the king’s absolute regime and also paved the ground for ending the armed insurgency in Nepal.

 The UCPN-Maoist, too, was not in a position to move beyond the ‘strategic equilibrium’—the state in which position of both sides was equal. The Maoists, too, were convinced that they were also not in a position to defeat the government troops. Its fighting force had been declining as they were finding it difficult to get new recruits in their “People’s Liberation Army”. Moreover, the Maoists had legitimacy crisis and they were desperately trying to seek international recognition, for which the alliance and agreement with parliamentary parties like Nepali Congress and the CPN-UML was necessary. These circumstances compelled the Maoists to enter into agreement with the seven-party alliance.

While 12-point agreement was a compulsion for parliamentary parties as well as the insurgent Maoists, the Comprehensive Peace Agreement was a win-win for both sides. It was an agreement that was signed following the condition of their victory against feudal and tyrannical monarchy. After the success of Jana Andolan, the monarchy was virtually sent to coma with no power to exercise and no recognition and no respect from the public and was ultimately abolished after the election of the Constituent Assembly.

The Jana Andolan II was, thus, a historic opportunity and achievement for the Nepalese people as it not only heralded republic and inclusive democracy but also dawned a new era of peace by ending the decade long armed insurgency. The achievements of Jana Andolan II could be formally institutionalized only when the new constitution was promulgated. Thus, the writing of the new constitution and its early promulgation were necessary, for which political parties and their representatives in the Constituent Assembly need to expedite their works. As some key issues are yet to be resolved, the parties are required to demonstrate maximum flexibility and make compromise on issues like federalism and forms of governance taking into account the larger interest of the country and the people.