National 8 (Spotlight Weekly)

International Experience of Consituent Assembly

By Lalit Bahadur Basnet

At present, the constituent assembly has become a major point of debate and discussions in the country. The constitutional forces of the day are, on the one hand, demanding the restoration of the Constitution of the Kingdom of Nepal 1990, while, on the other hand, they are also saying that they can even go for the constituent assembly. The demand for the constituent assembly is being made without definite studies to find out the weaknesses of the present constitution or to find out what cannot be achieved through its amendment.

In this context, it is appropriate to look around the world and see the international experience of constituent assembly. There are several examples where the constitution framed by constituent assembly were undemocratic. Although the constituent assembly is a democratic process, there are many examples of it framing undemocratic constitutions. Let us study some of the major international experiences of the constituent assembly:

The United States: After America’s independence in 1776, the organizers of the revolution actively took part in the constitutional conference in Philadelphia from May till September of 1787. Fifty-five participants from 12 out of then 13 states took part in the conference, which came up with the world’s most democratic constitution. The constitution framed by leaders like James Madison, George Washington, Alexander Hamilton, Benjamin Franklin and Thomas Jefferson is looked upon with equal respect even though there are now 51 states in that country.

Japan: After the end of World War II, Japan was given a new constitution by American army general McArthur. This constitution, although given by a person from victorious country that defeated Japan, is still in place. And the Japanese have been able to achieve tremendous political and economic progress based on this constitution. No one there raises the ‘technical issue’ of framing one’s constitution oneself.

India: Indian leader Jawahar Lal Nehru had demanded for constituent assembly in 1938 – long before India gained independence from Britain. Following long debate among British government, Indian National Congress and Muslim League, British Parliament passed Indian Independence Act in 1947 and set up a provision of framing its constitution through constituent assembly. The Indian constituent assembly was formed in such a manner that its members were elected only by the members of the ‘Provisional Legislative Assembly’ formed under the British rule – and not by the direct voting by the Indian people. In this indirect election of the constituent assembly (with the total strength of 389 seats); Congress won in 292 and Muslim League in 73 seats. Later, the Muslim League refused to take part in framing of the constitution and instead demanded new state. As a result, India was partitioned.

Pakistan: In 1947, India was divided into India and Pakistan indirectly due to the election for the constituent assembly. The 73-member constituent assembly of the Muslim League presented its first draft (of constitution) in 1950, second in 1952 and third in 1953. But in 1954 the constituent assembly was dissolved and was again formed in 1955. In 1956, it came out with a new constitution. However, less that two years later General Ayub Khan cancelled that constitution and army rule was in place. Later, General Yahya Khan again declared constituent assembly to give new constitution to the people of Pakistan. Subsequently, Pakistan was again split and Bangladesh was born.

Sri Lanka: The first constitution was framed in 1946 during its independence from British rule. Later in 1970, then parliament with 157 members were transformed into constituent assembly, which framed a new constitution in 1971. It shows that if there is a consensus, even the elected parliament can serve as constituent assembly.

Russia: In 1917, the Czar regime collapsed. In 25 November, 1917, election for the constituent assembly was held. The Socialist Revolutionary Party won 40 percent of the votes whereas the Bolshevik party obtained less than 25 percent of the votes. When the Bolshevik Party came to power following the October revolution, Lenin scrapped the draft constitution and dissolved the constituent assembly. The central committee of the Communist Party was assigned to draft a new constitution. This constitution was promulgated in 1918. Later, with the objective of framing federal constitution, a new drafting commission was formed. The new constitution came into force in 1924. This shows that the possibilities of rebellion continues if the constitution framed by the constituent assembly does not suit one’s interest.

France: After the French revolution in 1791, an interim constitution was introduced. After a few years, France framed a republican constitution through constituent assembly. However, France had to suffer from extreme instability. Later, in 1958, another republican constitution was framed by constitution drafting commission. This constitution is still in force.

Germany: In 9 November, 1918, monarchy was abolished and in 1919 a constituent assembly was formed which framed a new constitution for Germany. Subsequently, Germany suffered from serious instability. In the next 14 years, 21 governments were formed. Parliament was dissolved a number of times. Later, Adolf Hitler scrapped that constitution. After the end of World War II, Germany was divided into two countries. The constitution formed by a drafting commission for the Federal Republic of Germany in 1949 is still in force.

South Africa: After the end of apartheid regime in South Africa, general elections for the parliament was conducted. The members of the parliament elected a drafting commission, which framed a constitution. The parliament ratified the constitution in 1996. The constitution of South Africa was not formed by any constituent assembly but it is regarded as one of the most democratic constitution in the world.

Conclusion: Constituent assembly is normally formed in case of political vacuum following a big change through direct or indirect elections. The international experiences show that constituent assembly is formed broadly in three different manners: a) through constitution drafting commission eg Nepal b) constitutional conference eg America and c) constituent assembly eg India. However, there is no example in which the constituent assembly has been elected directly by the people – as is being demanded here in Nepal. If that happens in Nepal, it will be unprecedented.

(Basnet is a constitutional lawyer. This is a translation of his article that was written in Nepali.)