Post Earthquakes Constitution Building Initiatives: It is still possible to work on a framework constitution?

 The job of constitution-making is again back on the political agenda since the last week. The preceding week intensified some internal meetings on the backlog of constitution-making between many of the political parties. This also led to other subsequent coordination meetings between major political parties. This shows that the parties, after the interruption following the April 25 earthquake and consequent aftershocks, are back to this important political business.

The major political parties (Nepali Congress, UML and UCPN (Maoist) have claimed that they have reached an agreement on the form of governance and have decided that the number of federal provinces could be fixed on six to eight while the federal legislative assemblies could be given the responsibility of naming the provinces. A commission could then be formed to delineate the boundary. The three major political parties and United Democratic Madhesi Front then informed the other leaders of the 30-party alliance on June 5 about the progress in the constitution-building. These resolutions help solve a couple of contentious issues. However, all these claims are still without any shape, and nothing has been committed to writing. It is highly possible that they walk away from their agreements, as it has happened very often after similar meetings.

The effort towards constitution-building has suffered ever since it started in 2008. One of the major reasons is the willingness of the political leaders to work on everything important only for them. While substantial constitutional issues must be resolved, they do not want to leave even the provisions of minor details (which could be better left for the future legislators). Even on substantial issues, they want unanimity, or almost unanimity, disregarding the two-third consensual position on most of these issues. There is little moderation of their positions by experts or politicians a cut above them. Additionally, the general level of constitutional understanding of the elected representatives remains low. There is no change in the situation even after more than six years. Similarly, there are petty interests of each political party, and some of them are also said to be serving as proxy forces for external interests and geo-political players in Nepal. These factors still make the going difficult. The political slogan on air this time is the need of unity to get back to national reconstruction. Following criticisms from different quarters, the opposition parties have given up the initiative to demand national government in order to strike consensus on the remaining contentious constitutional issues. The leaders now plan to settle disputes, mainly related to federalism, and promulgate the new constitution within the first week of July, as a condition for the formation of a national government. The political leaders were said to be committed to ensuring that the reconstruction mission was carried out effectively, along with a political settlement.

The Nepali Congress has rejected to pack up the coalition government before a constitution is finalized based on its understanding with the main coalition partner, CPN (UML). It is said that the Nepali Congress was not interested in giving shape to a new government by leaving the constitution-drafting process and reconstruction works in tatters. It has advised other major parties to stop fighting for power and instead focus on the constitution-drafting process.

It is still possible to work on a framework constitution as opposed to a more detailed constitutional model. Because a framework constitution is more general and avoids contentious policy issues that could not be solved by the existing house, it may be easier to reach consensus among the parties involved in drafting. It may also have greater appeal to the public due to its lack of policy details. When policy details are lacking, this gives opportunity to the elected government to work them out according to the fresh mandate. For this reason, a state may adopt and ratify a framework constitution more quickly. A framework constitution may also have greater flexibility, since it allows subsequent law to adapt under the constitution, for instance via new legislation, rather than requiring constitutional amendment or revision. A framework constitution has strong frameworks. As such, it is not necessary to amend it frequently.

Thus, a framework constitution will likely be more durable and last longer as the state’s fundamental political and legal structure. The challenge at this stage is to convince the parties in the opposition that this policy is advantageous to them as well in the given scenario.