Only way aheadLawmakers should address public concerns while finalising the draft constitution
The four major parties that were instrumental in formulating the preliminary draft of the constitution were reluctant to hold a longer and a more comprehensive public debate on it. Therefore, they only allocated two days for the historical deliberations. On the other hand, most Madhes-centric and ethnocentric parties which boycotted the draft exercise tried their best to thwart the public discussions. Further, self-styled civil society leaders predicted that people’s participation will be poor. They opined, “People do not want a constitution that will not federalise the nation along ethnocentric lines.” Despite all of this, people spontaneously took part in the discussions in large numbers. Nearly two hundred thousand suggestions from across the nation have been collected, both from individuals and institutions. Suggestions/feedbacks received through various mediums are not only plentiful but also mature. This makes it difficult for the four party leaders to disregard them.
Except in Janakpur and a few places in mid-eastern Tarai—the hotspot of the Madhes Movement—the consultation programmes were held smoothly. People refuted the huff of Madhesi and ethnocentric parties to launch ‘popular’ protests if their demands were not met. Once again, they rejected the latter’s agenda of ethnocentric federalisation and demanded that the number of proposed states be reduced and that they be carved along a north-south axis. But this is not to say that they fully endorsed the agendas of the four major parties. Commoners and intellectuals alike preferred a directly elected executive chief to the one elected by parliamentarians. So, the largest party—Nepali Congress—must honour the public opinion and not stick to its old stance of having a premier elected by parliamentarians.
An overwhelming number of people seem to be opposed to the term ‘secularism’. The term, misunderstood by many among the 81 percent strong Hindus, and misused by the evangelists, has sharply divided communities. Therefore, it is little wonder that majority of the Hindus strongly demanded that the term ‘Hindu state’ be restored in the statute. However, many of them also hinted that they would be content with a provision like ‘religious freedom for all’, if reverting to Hinduism is not possible or acceptable to all. Therefore, parties would do well to take this middle ground which neither mentions the term ‘Hindu state’ or ‘secularism’. The UCPN (Maoist) in particular, which labels the anti-secular and/or pro-Hindu state forces as regressive, status-quoist, monarchist and so on, should learn to respect people’s wishes.
People in general and women right groups in particular have strongly voiced their concern over the citizenship provisions. People have also articulated that a minimum threshold (of popular votes) should be maintained, to be eligible for proportional representation. They have also demanded that certain (educational and other) qualifications be fixed for elected representatives. They also want a direct election of the ward chief of the Village Assembly, a provision missing in the draft. There are many more; most of the suggestions are highly merited and hence deserve to be properly addressed. There are other anomalies as well which need to be corrected.
First and foremost, the very preamble of the constitution needs to be overhauled. It should have been precise but instead, it reads like a manifesto of a revolutionary political party—lengthy, full of sloganeering and political jargons, and is poorly structured. And it is not only the preamble but the entire constitution that needs to be made more compact and substantive. It would do well for leaders to learn from the US constitution, one of the shortest constitutions in the world, and yet a model for constitutionalism and a favourite of constitutional experts.
The preamble of the draft pledges ‘to construct the basis of socialism’. Similarly, Article 4 and Article 54 (3) respectively state that Nepal will be a ‘socialism-oriented’ nation and that the state’s aim is to develop a ‘socialism-oriented economy’. However, the statute neither defines those terms nor gives any kind of road map for such ‘socialism’. There cannot be any because socialism is a thing of the past. Blueprints of failed ideologies of the 20th century cannot be produced; the whole exercise just seeks to appease the powerful communist/socialist lobby. Such political facades should, therefore, be removed in the final draft. Also, the statute has too many fundamental rights, and many of them are simply too difficult to implement. Only those rights which can be enforced by a competent court of law should have been incorporated as fundamental rights. For example, in case of violation of right to property, the courts can issue a writ. Other rights should instead be included in the guiding principles of the state, which are not binding.
The list of near impossible fundamental rights is just too long. For example, right to employment has been defined as a fundamental right; consequent to which, unemployed people will be on the dole. It is simply impossible to implement such a provision in a poor nation like ours where nearly two-thirds of the working age population is unemployed or underemployed; nearly 1,800 youth leave the country everyday to join low paid and difficult jobs in Arab countries and Malayasia; thousands of others leave for neighbouring India for even lower paid jobs and where even existing employment opportunities are sliding day by day for political and economic reasons.
Further, to set up a constitutional court just for 10 years is simply foolish. The uncalled for and unwarranted provision has been incorporated only to appease the ex-rebels—the UCPN (Maoist)—which, regardless of its merit, made it a prestige issue. Instead of such experiments it is high time an appropriate mechanism be created which will make the judiciary and other constitutional bodies more accountable and efficient.
It appears as though there has been little homework with regards to the allocation of resources, especially financial resources, between center-state, interstate and state-local bodies. As the monetary policy should be uniform within a nation, institutions/instruments of the policy such as banks and financial companies should lie within the jurisdiction of the central government. The draft seems more focused on the rights of the provinces, and not on the rights and jurisdictions of local bodies. More should be done in this regard; for, local bodies are the founding blocs of democracy and local development. If the rights of local bodies are not guaranteed in the statute right now, the future provinces may not be willing or cooperative to grant them enough rights in the future.
Coming back to the preamble, despite expressing a commitment to the nation’s freedom, independence, sovereignty, national unity and self-respect it glorifies the ‘armed rebellion’ (of the Maoists) which the people want to forget for once and for all. At the same time, it is completely silent on the history of our forefathers including the ones who unified the nation like Prithvi Narayan Shah and those who sacrificed their lives on the altar of those values. This needs to be rectified; a nation cannot be ungrateful to its founding fathers.