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The CA's worries

Bipin Adhikari
The Kathmandu Post, 26 March, 2009
Source: The Kathmandu Post

"You say you'll change the constitution; well, you know, we all want to change your head"

The worry of the Constitutional Committee, which has the responsibility of producing a draft of the new constitution for the purpose of plenary proceedings at the Constituent Assembly (CA), has now doubled.

As a wise policy, it has almost forced every political party to come up with their latest opinion on the sort of constitution they want. Almost half a dozen parties have already spoken to the committee, the rest are waiting to do so. They have their election manifestoes, but this is a document that each one of them prepared last year when the situation was fluid, and the way the mass moved dictated the terms rather than any thoughtful process of change. Supposed to continue till April 2, this exercise will help the committee leadership to finalize the basic principles on the basis of which they are to produce the first raw draft at the committee.

The committee leadership seems to be worried that the parties have not sorted out what form of government their consensual choice is. This must be the point of departure for the drafting work to start. Without taking this important decision, it is hard to think about the nature of executive power, its relationship with the legislature, the position of the judiciary and the work methodology and independence of constitutional watchdogs. Additionally, it will depend considerably on the form of government the sort of vertical or horizontal division of power that should be considered in the scheme of division of power among the constituents of the state. This concern of the CA must be addressed first. It is largely a political decision.

Another worry is about the outcome of the thematic committee processes. While the rest of the thematic committees will retire from the scene after they submit their concept papers, the Constitutional Committee will stay on to draft the new constitution, and get each of its draft articles and the preamble passed through the CA plenary procedures. Every committee can escape its responsibility; the Constitutional Committee cannot do so because the ultimate burden falls on its shoulders. It has to produce the draft constitution no matter how if the objective of the CA election is to be fulfilled.

Many Constitutional Committee members think that unless something is done on an urgent basis, the concept papers to be received from the committees are not going to be worth their name. These papers are not just policy statements, but also technical papers supposed to cover most of the constitutional nuances that a committee has to cover under the CA Rules. That means simply that before starting to draft the constitution, the Constitutional Committee will have to fill up the gaps in the concept papers first.

It is not clear how the thematic committees will produce their concept papers and primary drafts, as required under the CA Rules, without adding some features to their modus operandi. As of today, it is being done by the committee members with the support of government legal professionals who have been put at the disposal of these committees. While most of the committee secretaries and their support team members are legally experienced to do the job entrusted to them, it is difficult for them to cater to all the needs. This is not just because a significant part of their work is spent on coordinating the committee's activities, but because there are other pressing needs too.

The reasons are apparent. The job involves not just legal professionals, but also subject matter experts and people with drafting abilities. Several inputs have been received, orally or in writing, by each committee; but they require a plethora of analysis and treatment before they can be used for the concept paper.

As far as the completed questionnaires are concerned, some random sampling would be necessary at this stage, and the secretariat needs expert hands to do the job. It is learnt that CA officials have been in touch with the Bureau of Statistics. They too would require outside experts to process the questionnaires and get meaningful statistics out of them. It is immaterial.

There is no alternative to outside experts. But thanks to the kind of politics there is in this country, there are two kinds of experts now -- those who have attained professional excellence because they are qualified and those who are samabeshi selections as they do not fall under the BCN (Bahun-Chhetri and Newar) category, and are still experts within a manageable range. No matter who does the job, a second layer of samabeshi inputs cannot also be avoided as part of the legitimization procedure. This will take extra time.

As a point of reference, for example, the name of a noted constitutional lawyer was struck down from a committee list of experts because some members said he could not contribute to the shake-up and chhalang process. It is easy, as the committees have found, to get people to speak to the CA members in their area of interest as has been the practice. It is very hard to get people who can do the job professionally. Many high achievers in Nepal, and those who have contributed to this area in a very significant way, remain outside the process.

Handling a wide spectrum of politicians in each committee -- including those who are ingrained with the concept of kramabhangata (wild shake-up of all traditional parameters) and chhalang (a leap forward), and moderates with a sense of history and heritage and what might work or not -- is never an easy task. It is difficult to work out a common point on each and every issue. So the limitations of the CA process are very clear.

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