Perspective (Spotlight Weekly)

Constituent Assembly or Essential Acts of Constitutional Modernization?: Reorientation Needed

By Bipin Adhikari

Seven months after entering into a ceasefire with the government, the Maoist rebels have walked out of the peace talks. The rebels claim the government has refused to meet their key demand – i.e., the demand for election of a constituent assembly, which would draft a new Constitution. In its absence, the Maoist side had no appreciation for the flexibility of the government, especially its comprehensive reforms package, which included a plan for constitutional amendment or thorough revision to achieve what they termed as a series of progressive political, economic and social reforms. According to the government, these reforms would have given the oppressed, the economically downtrodden and poor people a voice in the state system that they never had before. But it was not what the rebels had hoped for.

Few deny that the third round of peace talks was a botched job. It went off the rails due to Maoist reluctance to think twice. The rebels insisted for a roundtable conference of all parties which would form an interim government, headed by them, and organize elections for constituent assembly. They allegedly wanted radical change in the whole state structure. In other words, unless the government is ready to meet the demand of the constituent assembly, which will give necessary opportunity for this, there is no possibility of bowing down to the government position. The government, however, does not want to accept it because successful change depends on planning, patience and perseverance. There are many other political parties who also think that the Maoists demand for the constituent assembly must be adequately justified. Thus, with the peace process in tatters, Nepal appears set to re-enter a new phase of bloodshed.

From Nazi Germany to Haiti, the lessons of regime change are clear. Prerequisites for success are slow and steady progress, internal security, respect for law and order, absence of corruption, and determination to go democratically. Nepal need not be a disaster. A constituent assembly, even if it is accomplished, does not assure these things. If the intention is to get rid of monarchy, this is something that needs to be decided by all Nepalese adults by way of referendum or other popular means to gauge the public opinion. Why should Maoists think that they have the monopoly over all public issues? There are several other political parties with their specific comparative analysis of the situation. How can the Maoists or the government for this matter decide things like this as if the Kingdom of Nepal is their private estate?

The crisis comes at a sensitive time for Nepal, with mainstream political parties planning decisive protests to press King Gyanendra to sack the government and appoint a popular cabinet.

It is not my suggestion that we do not need constitutional reforms. There are plenty of issues, which we must address to consolidate the rights of citizens under the present Constitution by appropriate reforms. They include, to name just a few, the rights of ethnic communities, minority rights, proportional representation in certain areas, the issue of devolution of powers, women’s rights, and criminalization of untouchability and ‘sano-jat’ exploitation. The country has learnt quite a lot during the last twelve years. It has become more matured in the understanding of issues which were ignored in the past because many people considered them potentially divisive issues.

In UK as well, we have seen Prime Minister Tony Blair announce what he called "essential acts of constitutional modernization." A new Department for Constitutional Affairs has been set up as an additional step in the right direction (although it is headed by an unelected member of the House of Lords). This new department will provide a focal point for constitutional debate. The long overdue reform of the Lord Chancellor's role has been a central tenet of labour campaign. The Labour Party is working on several constitutional reform issues which are still incomplete: regional government in England, reform of the House of Lords, modernization of the House of Commons, and referendum on its voting system. The creation of an independent Supreme Court is a step towards the proper separation of powers that should exist in a democracy. A major obstacle to the creation of a new supreme court for the UK was the position of the Lord Chancellor. But now that is not considered the problem. An independent appointments commission is to be put in place, not only to nominate members of the Supreme Court, but all judges.

Since the 1960s the judges have largely reinvented judicial review, vital in controlling an ever-expanding bureaucracy. In 1972, on the eve of joining the common market, the European Communities Act brought European law into the centre of English life and with it the European concept of judicialising many decisions; the judges, in effect, could hold British statutes unconstitutional. The Labour Party itself, for all its talk of joined up government, has put through piecemeal legislation, which has immeasurably enhanced the power of judges. Not only devolution but also the Human Rights Act have transferred some aspects of sovereignty from parliament to the judges and forced them to give “moral answers to moral questions,” as Lord Brown-Wilkinson put it.

In all these attempts, the British people are conscious that the fundamental changes to the Constitution must have coherence. Change cannot be achieved by the power of gun, stealth and subterfuge. What we now need is coherent constitutional debate to reform the existing Constitution without further destabilizing the country. Now is the time to seize the moment and let the people of this country have a reformed Constitution by not vitiating what has already been achieved.

[Adhikari is a lawyer. He may be accessed at human_rights_nepal@yahoo.co.uk]