Precursors of this phenomenon are already being experienced in the form of bandas and protests leading up to the (once already extended) deadline, the likes of which, preceded the former deadline for the constitution making last year as well. Right now, one of the central debates is over the question of whether the term of the Constituent Assembly (CA) should be extended or not. That train has already left the station as it is a little too late for this debate as well. With less than a week left for the existing term to end, an extension is the better of all choices; not necessarily the ideal choice but the best amongst our options. Dissolving the CA and/or holding new elections and the consequential reverting to square one will just push us even further behind on the progress that has been made thus far. An extension is the best that can be done in such a tight, we-are-up-against-a-wall situation.
However, although an extension is the most viable course of action, the CA members and political leaders should in no way view that as an encouragement to continue slacking off on work. Patience, no matter how much in abundance, will one day completely run out and consequences will be dire. The CA members and political heavyweights must remember that an extension, though needed and almost certain, is going to chip away at the already rapidly thinning out patience of the people. With this in mind and hopefully the right sense of shame and urgency fuelled by that shame, the constitution making process needs to be continued and completed.
One realizes that the environment for constitution making in Nepal is one of high uncertainty. In 2006, with the success of the People´s Movement II fresh in our hearts and minds, Nepal was a country full of hope. Uncertainty was high even then but it was tempered by optimism. Four years on, uncertainty is high and escalating and optimism turning into pessimism. Despite the continued reiteration by several parties of the emphasis on peace and security, we seem to be no closer to either of them than we were a year ago. Uncertainty on the grounds of peace and security is not a favorable environment for constitution building. Therefore, if and when the CA term is extended, priority should be given to army integration and the setting up of a truth and reconciliation commission and a disappearances commission, all of which will greatly contribute to reducing the threat of violence and possibilities of the presence of justice.
Agreements and consensus would be more likely if all simply looked at a future Nepal with an uncertainty over the matter of which political ideology would prevail. In that case the constitution would then be neutral on political ideological grounds.
However, the other uncertainty of political ideology and power can actually provide a favorable environment for drafting a nondiscriminatory constitution. Buchanan and Tullock opined that just rules (and by relation a fair constitution) are chosen when real uncertainty over (future) positions of power exists. They explained that a person or a group of people draw up rules and the constitution in a manner which favorably affects their welfare in the future. Thus people create constitutions not only with their present in mind and experiences of the past (of exclusion and advantages) but also and most importantly their future. In case of an absolutely certain future (eg certainty that a particular person will always be a part of the ruling elite or will always be in a position of power and wealth) the person(s) will make a constitution that will favor his or her position as such. Which means, for instance in the above example, the people might draw up rules that favor the rich over the poor, the current ruling caste/group of elites to which they belong over other ethnic groups and weaker caste groups, etc. On the other hand, when faced with uncertainty, a person will set laws that are favorable to all because as he is uncertain of his future state he would not want to be the victim of a discriminatory rule that he himself drew up when in power.
Our history with previous constitutions contains some apt examples of this. The previous constitutions were drafted by an almost exclusive group of elites – king, the privileged elite, and the superior ethnicity – who in alliance with the monarch drew up a constitution favoring one religion and one social group because of their absolute certainty that they would always be ruling. Now, they are left feeling that the very constitution, which was crafted to favor the interests of a few, which did not see all citizens as equal, is unable to protect them, hence, the now new phenomenon of Bahuns and Chettris calling bandas for their rights (to be included in Adhivasi/Janajati). After decades of enjoying social superiority (and enjoying privilege and power) reinforced by the constitutions of the time, they are now realizing just how that the constitution is not inclusive and does not guarantee the rights of the common citizen irrespective of their status, religion, gender, or ethnicity. Therefore, we now see all ethnicities including the former ruling elites demanding rights which would have not been necessary had previous constitutions protected the rights of all in a non-discriminatory manner.
From this same perspective, we can analyze the situation of politicians and parties disagreeing over various conflicting views (of their political ideologies), one of which is over the type of government – presidential system or parliamentary system. Those championing the presidential system are doing so by envisaging themselves in the position, absolutely certain (as they embarrassingly once were earlier as well) that they will fill that position and hence wield the associated power. However, if they did see the uncertainty that once the system is finalized it can be them or any other political party leader campaigning different political ideology, who fills that position, they would perhaps rethink their opinion. Likewise, those for the other systems are also guilty of choosing a particular system with a certain future in mind as opposed to thinking of an ideal system which would be perfect in a state of complete uncertainty, ie, whether the UCPN(M) or the Nepali Congress or any other party come into power. Agreements and consensus would be more likely if all simply looked at a future Nepal with an uncertainty over the matter of which political ideology would prevail. In that case the constitution would then be neutral on political ideological grounds.
Thus we see, uncertainty, not in terms of peace and security but future power dynamics and political ideology, is conducive to drafting a fair and nondiscriminatory (all inclusive) constitution.
Writer is Executive Director of Niti Foundation, a policy research funding institute
mohan.manandhar@nitifoundation.org
Related story
ICC T20 World Cup: England set Nepal a challenging 185-run targ...
-1778925320.webp)
