Constitution Making Process - Some Basic Requirements
By LALIT BAHADUR BASNET
The seven political parties (SPA) and the Maoists have decided that the election of the constituent assembly should be held within one year to make the new constitution. The making of the constitution is an important task in the history of any nation. That's why; every one should seriously think and study about the constitution making process and its basic requirements. Constitution making after conflict is very much a serious task fraught with risks. If there is a mistake, it could mean that the conflict would never end and nation would land in a deadlock. The constitution making process must pursue the sometimes-divergent goals of representing the peoples’ wills, and forging a consensus regarding the future of state. It must pursue its course while ensuring respect for universal principles such as human rights and the basic norms of democratic governance. So there are some basic underlying requirements, which should be duly considered during the constitution-making process. The following requirement should help in the pursuit of all these aims.
Sign a peace accord -
After the end of armed strife, a peace accord should come before the process crafting a constitution begins, which will lay the groundwork for making environment conducive for the process of making of the constitution. Otherwise, the process would face much difficulties. The troubled Yugoslav republic of Bosnia and Herzegovina where a peace accord could not be signed may serve as a cautionary example in this regard. Likewise, in Zimbabwe the 1990 constitution has not proved conducive to the resolution of the conflict because the protection of white-owned farms was necessary for peace. Without the protection of them, the conflict could not be resolved. So the main conflicting groups should sign a peace accord before entering into constitution making process.
Address on security issues -
It is the basic and minimum requirement to make the conducive environment. A turbulent security situation hampered the constitution making process in Ethiopia where there is no legally constituted national army or police to ensure the security for effective local participation in the election. In Cambodia, the main political parties agreed to a comprehensive, UN brokered political settlement, the Paris Agreement. But it failed as a peace accord, because there was no disarmament or demobilization, and cease-fire violation kept occurring. The continued flaring of political violence had disturbed the election of the constituent assembly in Colombia; the 1991 constitution was an attempt to mitigate ongoing violent conflict. But the refusal of two large leftist guerilla forces to take part in the constitution making process, which dealt the peace a heavy blow, ensured that the internal conflict and violence continued across all over the national territory.
Must involvement of key stakeholder while drafting the new constitution -
To endure and promote peace, the key stakeholders must be involved in the constitution making process. In Cambodia, one rebellion group was excluded from the constitution making process and that is still fighting against the government. Likewise, in the Balkans some rebellion groups wear excluded in the constitution making process. In South Africa, a culture of reconciliation between the government and the rebellion made it possible to have the most democratic constitution of the world. In Namibia, all interested parties agreed in 1981 on the principles concerning the constituent assembly and the constitution of the independent state of Namibia. Then the constituent assembly unanimously adopted the constitution with these principles. The Ethiopian opposition did not take part in the constitution drafting process and hence it denied the legitimacy of the constitutional commission. The paucity of public debate left important issues of ethnicity, self-determination, and federalism inadequately addressed which later fed secessionist trends within Ethiopia. Venezuela's 1999 constitutional process facilitated the take over of the state by a single group. With the constituent assembly dominated by the party of populist president and one-time coup leader Hugo Cha'vez, many political forces wear shut out and popular participation were limited and some important issues like decentralization and party reform went un-addressed. Now the Venezuela political system being deadlocked in a feud between pro- and anti-Cha'vez forces cries out for major reforms. Similarly, in Colombia, the constitutional process has not brought peace because the two larger rebel groups did not take part in it.
Conduct preparatory work well before choosing a constituent assembly -
This is a fundamental requirement because the constitution-making process itself is not really the beginning. Rather, the process must be mapped out before it starts, and everyone knows that process affects outcomes. So the methods, timetables according to which new constitution is to be written, discussed, and approved may become the bone of contention. South Africa's interim constitution was made through intense negotiations among key stakeholders. It set out the basic principles governing the constituent assembly and ensured that no one group would dominate the process of transition. In Namibia, substantive and long-term discussion among all key actors resulted in an agreement to hold the election of constituent assembly.
No to domination of one political force in constitution drafting body-
In Nicaragua's 1984 constituent-assembly elections, the Sandinistas party won 67 percent of the vote, but they offered concessions to opposition parties to elicit extensive public participation in constitution drafting period. In East Timor's first post independent election, one party won a sweeping victory but it invited the opposition parties to take part in the drafting process. The same process had been adopted in Ethiopia also. But in Venezuela, the ruling presidential party dominated the 1999 constituent assembly by flagrantly violating the existing constitution, the principles of dialogue and totally ignored the opposition party and assumed all powers for which it had no mandate. As the party totally ignored the reconciliation, consensus -building in constitution-making process, Venezuelans are paying the price, as their country's turbulent history under the 1999 constitution attests.
Serious and thorough talks among key stakeholders-
Consultation and cooperation among key stakeholders are the basic requirements in constitution making process, which helps to visualize the destination of the constitution. Namibia held a constitution debate that lasted several years, which influenced all political development. All stakeholders agreed after long discussion on the list of the constitution principles that " Namibia will be a unitary, sovereign and democratic state" Likewise, in South Africa an understanding was made among key stakeholders about the basic principals of the future constitution. In post -Franco Spain, the initial phase of the constitution - drafting process, main political parties had agreed to make the basic framework for the new constitution. They unanimously agreed to address such core issues as outlines of the new polity, territory organization, fundamental freedoms and the reform or abolition of Franco- era political institutions. In contrast Bosnia and Herzegovina's constitution was adopted without consensus of main political parties on the nature of the state of the political system.
Popular participation -
Basically constitution-making is an exercise in democratic empowerment and can contribute significantly to nation-building. Large people participation in the making of the constitution can promote and strengthen the legitimacy of the constitution, which assures the citizens to claim the constitution as their own. South Africa is the latest example of public participation in constitution-making which enjoys extraordinarily high legitimacy. Namibia and Eritrea also had intense and long-term participation in constitution-making so that their constitutions today enjoy a high degree of legitimacy.
Constitution-making process should be open and transparent-
If we produced constitutions without transparency and adequate public participation, it will lack legitimacy. Unlike in South Africa, the Cambodian public never got access to the constitution drafting sessions and had no input into the text. That's why Cambodian's constitution established a weak democratic structure. In Ethiopia, the closed process harmed the legitimacy of the constitution. The East Timorese had merely ninety days to deliberate on a constitution and not any civil societies got the time to prepare adequate submissions. Fiji's constitution commission declined to present the draft for the public discussion.
Should incorporate universal human rights and democratic values -
It should be made sure that the constitution incorporates the basic principles of universal human rights, including the right to participation and democratic governance. Most of post conflict constitutions adopted these principles. East Timorese and Nicaraguan constitutions explicitly acknowledge the importance of international law in safeguarding human rights. And they incorporate the Universal Declaration of Human Rights and the main two UN human rights conventions, the International Covenant on Economic, Social, and Culture Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR).
Seek help from experts -
Constitution-making is, to a large extent, a purely technical work also. So it should take help from international and domestic experts, and look abroad for lessons, which would make valuable contributions. The Asia foundation had sent constitutional experts to East Timor to give technical advice. Nicaraguan political leaders traveled to study various constitutions and met with experts at home and abroad.
We are going to make the new constitution through the constituent assembly within one year. But processes and contents of the constituent assembly have not been studied seriously by any political party and/or intellectual group. The history of our constitutional development provides a sorry story .We have made five constitutions within last sixty years. This shows that Nepal has become a laboratory place for conducting constitution-making experiments, not the place for proper use of the constitution. Our constitutional history shows that we failed all constitutions, not that the constitutions failed us. Now Nepalese people have got the golden opportunity to make their constitution themselves. This golden opportunity should be put to good use to make good constitution, which would guarantee the bright future of Nepalese people.
(The author is a constitutional lawyer. He can be reached at Lalit_gulmi@yahoo.com)
