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Lessons from history

Bipin Adhikari
The Kathmandu Post
March 12, 2010
From: http://constituentassembly.blogspot.com/2010_03_01_archive.html

"The Bolsheviks had only won a quarter of the seats in the elections to the Constituent Assembly (CA) in November 1917. They were shocked to see that the October Revolution they had forced on Russia one month before by overthrowing the provisional government had not been legitimised by the voters. So they proclaimed the newly elected assembly to be a "bourgeoisie" assembly – an assembly that had no regard for the Soviet government instituted by Lenin & Company."

The Bolsheviks had only won a quarter of the seats in the elections to the Constituent Assembly (CA) in November 1917. They were shocked to see that the October Revolution they had forced on Russia one month before by overthrowing the provisional government had not been legitimised by the voters. So they proclaimed the newly elected assembly to be a "bourgeoisie" assembly – an assembly that had no regard for the Soviet government instituted by Lenin & Company.

When the newly elected assembly refused to support the programme of the new Soviet government, the Bolsheviks walked out in protest, and later dissolved the house. For Vladimir Lenin, the leader of the revolution and the Soviet government, the elected house was an obstacle to the Soviet government. His ambitions were further unfolding. Many years after Lenin's death, British statesman Winston Churchill had a comment on the fate of Russia, "The Russian people were left floundering in the bog. Their worst misfortune was his birth… their next worst his death."

This is not a story of the Bolsheviks only. The history of constitution making is replete with revolutions misled and new constitutions backfiring upon the people. A few successful examples like the United States (1787), India (1950), South Africa (1996) and others are the best part of the discourse. However, many revolutions produced very good literature for posterity, but either very bad constitutions or the worst governments for the suffering people.

The French Assemblée nationale constituante of 1789 is a case in point. It produced a constitution in 1791 after surviving the vicissitudes of a revolutionary two years, but led the country to prolonged instability. That came to an end only after adopting the constitution of the Fifth Republic in 1958. It was drafted by Gaullist politician Michael Debré, and not by any Constituent Assembly. It was indeed the 17th constitution of France.

General Charles de Gaulle, World War II fighter and founder of the Fifth Republic, commented very frankly that a country which had 246 varieties of cheese cannot just be governed by uniform standards. He said, "I have come to the conclusion that politics are too serious a matter to be left to the politicians." As president, Charles de Gaulle ended the political chaos that preceded his return to power. But France is still struggling to eliminate the imprints of authoritarianism in the system of government that has a strong historical legacy.

Nepal remains misled while the Constituent Assembly is faltering. It should have been seen working with nervous energy, and fixing the first comprehensive draft of the constitution to bring it to the public any time now. This is not the case. The assembly has not even been able to match the pull and efficiency of Prime Minister Jung Bahadur Rana's Kaushal Adda that codified the first national code of Nepal back in 1854. It was a representative body by the standards of his time, powerful and filled with experts which had the mandate for codifying any type of law or constitutional arrangement that they found Nepal had been observing as the rule of law. Above all, it was able to deliver what it was appointed for. The heartiness of the house and the euphoria that it created must be something the sovereign representatives of the present day Nepal find enlightening.

The idea of a Constituent Assembly does not hold water where there is no faith in certain immutable principles that establish the basic human rights of the people and check democracy. The process loses sanctity in the absence of this basic commitment. One must be reminded of how the Constitutional Court of South Africa back in 1996 had turned down the draft constitution that the Constituent Assembly had proposed. There is little doubt that they followed a remarkable and exemplary process of constitution-making, signalling not only a formal transition from apartheid to constitutional democracy, but also a peaceful end to what had been a very violent struggle for a new form of governance.

South Africans started drafting the constitution by first setting out 34 constitutional principles in the Interim Constitution. The Constitutional Court was given the responsibility to certify that the draft constitution was in conformity with these principles. This certification process ensured that the draft constitution met with the original basic principles that the opposing sides had agreed to before beginning constitutional negotiations. After the Constitutional Court identified the draft's deficiencies, based on certain immutable principles of the rule of law and constitutionalism, the constitutional assembly reconvened and amended their original draft. This amended version was later certified by the court, and came into force in 1997.

It is not just South Africa, but all civilised societies believe in what the South African CA re-established through its remarkable procedures. If Constitutional Committee (CC) Chairman Nilambar Acharya, going by the same principles, calls for clarity on 16 issues, it should not be politicised. The CC, which is entrusted with working out an integrated draft report that incorporates all the 11 preliminary drafts, has every right to bring these issues to the table because the committee can't take its work ahead without resolving these contentious issues immediately. Many of the questions that Acharya has raised bring back the same issues whether the substantive limit on a political process related to the formulation of a constitution should be observed or not.

The Constituent Assembly has no right to fail. Its failure will not only raise a serious question on the ability and integrity of the present generation of leaders, but also on the faith that democracy delivers after all. The luxury has become an essence now. Whether by way of a framework constitution, as this critique proposed on the eve of the New Year in this column, or a comprehensive constitution, whatever that might mean, it must produce a document that ends the transition process, at least for now. The initiation of CA Chairman Subas Nembang and the Constitutional Committee chairman must continue (despite the Maoist concerns on the move).

A Constituent Assembly that establishes representative democracy, but not the substantial aspects of constitutionalism, amounts to a total failure. This is the reason that people these days talk about "constitutional democracy" more than representative democracy. Certain basic principles of the rule of law and constitutionalism must be in place to establish "constitutional democracy". It provides assurances that the end of politics – while unknown – can still be guided in a particular direction. This, of course, requires an effective enforcement mechanism.

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