Experiences of successful democracies have shown that a constitutional framework is the foundation on which basic norms and major institutions of democracy rest. Thus, the design of a constitution and its constitution-making or reform process can play an important role in the formulation of political and governance transition, as has been seen in many emerging democracies like South Africa, Timor-Leste, Sierra Leone, Liberia and Tunisia.

Recent writings from constitutional scholars, including Cheryl Saunders, Tom Ginsberg, Yash Ghai and Michele Brandt, assert that constitution making after conflict is a challenge as well as an opportunity to create a vision for the democratic future of the state and a roadmap on how to get there. Failures in managing conflicts and changes through peaceful means have ended in either a revival of violent conflicts or a continuation of political instability in post-conflict situations. Examples of such revivals are many, as in Cambodia (1997), Haiti (2004), Liberia (2004) and Egypt (2014), and so is the continuity of instability and uncertainty as seen in Afghanistan, Iraq, Syria and Ukraine. Nepal represents a unique case, where despite the first Constituent Assembly's (CA) inability to produce a constitution and the repeated failures of the political parties to manage political changes, conflict has not been revived.

Will Nepal be able to come up with a successful design? The political and social engineers of our constitution-writing process have not been very inspiring as their discourses do not seem to reflect vision, self-confidence, courage and skills. Senior leaders even appear to be afraid of competent new people. Therefore, hope now rests on the young.

The first attempt

After six previous constitutions failed to institutionalise democracy during the past seven decades, Nepal embarked on drafting its seventh constitution in 2008 through an elected CA of 601 representatives under the second Interim Constitution. The CA had promised to promulgate a federal constitution within two years. As part of the peace and constitution-building process, a Comprehesive Peace Agreement was signed in 2006 between the then rebel Maoists, who led the armed insurgency, and the then coalition government of eight parties headed by the Nepali Congress. Unfortunately, the CA failed to deliver even a draft constitution after four years of extended life.

Interestingly, Nepal's first attempt to create a CA to draft a new constitutional framework under the first Interim Constitution during the early 50s was liquidated by the then king. This time, it was mainly due to gaps in knowledge and skill among the ideologically-divided political parties in the huge Assembly, and their failure to agree on over 200 contentious constitutional issues, especially identity-based federalism and forms of governance. Moreover, the newly emerged political forces and their leaders prioritised power sharing and government formation over constitution writing.

Furthermore, the unwelcome and adamant attitude of the CA leaders kept constitutional experts and practitioners at a distance and prevented them from sharing their knowledge and experiences. Public consultations were not adequately conducted, as is needed in post-conflict constitution-making exercises to ensure local ownership. As a result, the Assembly died an unnatural death on May 27, 2012. Despite the Supreme Court's warning, no attempt was made to look for options to draft the constitution nor were explanations given to the people by anyone, not even by the Assembly authorities and political parties, as to why the CA failed to complete its job. The CA nevertheless emerged as a 'grand forum' of inclusive representation where issues of constitutionalism and national development could be openly debated.

The second round

In order to bring the derailed constitutional and political process back on track, intensive dialogues amongst relevant national and international actors, mainly the head of state and the reluctant political parties, took place, but without tangible results. Then, extraordinary political measures were taken by the country in agreement with the President, the then Chief Justice and the major political parties, through the exceptional constitutional tool of 'removing constitutional difficulties' and 'ordinances' under the Interim Constitution to hold fresh elections to a CA at the earliest. The reconstituted Election Commission, backed by a Chief Justice-led interim electoral government, successfully held elections on November 19, 2013 thereby enabling nearly eighty percent of the people to articulate their voice through ballots. To prevent the country plunging into a new wave of political conflict, the national security apparatus was also peacefully mobilised.

Despite several deficiencies and odd constitutional experiments, Nepal has once again entrusted the task of drafting a new constitution to a new sovereign CA. The Assembly has about 70 percent new faces, especially youth and women. The task of resolving contentious issues, including the creation of a well-designed federation, is not an easy job for such an inclusive House. Managing a small but resourceful nation inhabited by 125 ethnic groups, speaking over 90 languages, under a democratic constitutional framework, certainly demands a sophisticated but simplified governance model. Since the country has suffered enough and now learned lessons, it has to embark with full commitment on a course to offer a 'common national vision', reflected in a new democratic charter that is owned by the people of all segments.

No compromise

The government, political parties and others in and out of the Assembly must play a balanced role to achieve such an important task. Accommodating and managing dissentions through due process is key to success in peace and constitution-building exercises. Early signs of party leaders' utterances and their failure to rise above petty partisan interests in through agreed rules of procedure and fundamental constitutional principles, and in forming a coalition government, are not very encouraging. The political parties and all CA members, however, must not forget that the people, as well as the world community, are closely watching them. They should be very careful in designing and executing every stage of the constitution-building process. The people know that they are sovereign and ballots are their most powerful democratic tool. If any compromise is made against democratic values, rule of law and the achievements made so far, the people will not hesitate to revolt.

We Nepalis have no other option but to work together to create a constitution that can partly be a peace agreement, which allows space for a Truth and Reconciliation Commission and victims' rehabilitation process, and partly a national legal framework for federal governance. The legal charter must set up the rules by which the new democracy will institutionally operate, ensuring 'unity in diversity' and offering adequate decision-making opportunities for the people of Nepal towards their prosperity. All depends on how seriously and boldly the new Assembly members, especially youths, come forward by setting aside their petty differences. What is urgently needed now is courage and skill from the leadership and continued vigilance from the people, especially civil society and experts.

Dhungel is a Senior Advocate and Constitutional Lawyer