Constituent Assembly Has Made Substantial Progress in Constitution Writing

Despite all the chaos and apparent differences of positions/opinions/ideologies of political parties, they have made significant progress in drafting a new constitution. If one looks at the debates that have occurred in the CA over the past year and a half, it is clear that although differences between parties have persisted, there have also been major attempts to discuss issues and attempts to find adequate methods to address them.

There is a tendency in Nepali society that views the proceedings in the Constituent Assembly (CA) with great negativity and foreboding. The differences between the parties on important issues regarding the constitution go so deep, this line of analysis goes, that finding compromise is impossible. Those who believe this never expected the CA process to move as far as it has: to the stage where all 11 thematic committees have submitted their concept papers, they have been discussed and the next task is for the Constitutional Committee (CC) to write a complete draft of the constitution in the next month. Even now, the nay-sayers continue to disparage the process, emphasising the incomplete nature of the concept papers and the major differences between parties that yet remain to be resolved.

This reading is based on the premise that there is broadly one main fault line in the CA: between the Maoists and the ethnic/regional parties on the one side and the Nepali Congress and the CPN-UML on the other. This chasm between the two sides is so deep, it is thought, that bridging it is impossible. This is, however, a misreading of the situation. If one looks at the debates that have occurred in the CA over the past year and a half, it is clear that although differences between parties have persisted, there have also been major attempts to discuss issues and attempts to find adequate methods to address them. In many of these cases, in fact, there is agreement on the nature of the problems of Nepali state and society. The differences between parties are only regarding how to resolve them.
To take the debate in the Committee to Determine the Forms of State, for example, where the Maoists want to have a directly elected head of state and government and the NC and the UML stick to their position that the head of government should be elected indirectly through the legislature. On the surface, the difference looks irreconcilable. But if we look at the underlying principles of the debate, we find that the debate is about how much power the head of government should have. There is broad agreement that the political system of the post-1990 settlement, where the prime minister was elected through and could easily be toppled by parliament, led to great political instability.

The Maoists advocate a directly elected head of state so that governments can last for longer periods of time and greater political stability can be maintained. The NC opposes this because it feels that this would lead to a great concentration of power in the hands of the head of government. Meanwhile, sections of the NC and the UML continue to agree with the Maoist position that a directly elected head of government would bring greater stability. Their only difference with the Maoists is that while the former want a directly elected prime minister, the latter want a directly elected president. With more discussion in the CA, there is no reason to think that a compromise between the two sides, whereby there will be a stronger head of government than has traditionally prevailed but not so strong as to raise fears of authoritarianism, cannot be reached.

Or to take the debate in the State Restructuring Committee, where the disagreement is portrayed as one between advocates of ethnically based provinces (the Maoists and regional parties) and of federalism based on geographic and economic conditions (the NC and UML). But it is clear that the debate is more complex than that. The Committee, after all, has reached agreement that the defining principles for federal demarcation have to include both identity and capacity. While the NC and UML are unhappy with the concept paper as presented now (they feel it puts too much emphasis on ethnicity and will lead to the fragmentation of the nation), they have already agreed that identity should be a factor in the creation of provinces. There is thus room for further debate and compromise between autonomy for ethnic/regional groups and economic and geographic viability. Similarly, the NC and UML oppose the principle of agradhikar (priority rights) for ethnic groups in the provinces in which they are dominant. They, however, agree that historically marginalised groups require affirmative action. So here too, there is room for compromise between the two sides.

With Nepal’s diversity, it was never going to be easy to draft a constitution that addressed the demands of all groups. It was inevitable that some conflict would arise. In contrast to those who state that compromise can never be reached, however, the CA committees have in fact demonstrated how it is possible for parties to reach across party lines and be flexible in their positions. Of course, it may take some more time for all the differences to be resolved. The CA’s term may even have to be extended. But it is important to note that substantial progress has been made and there is room to hope that a constitution based on the broad-based consensus of most of Nepal’s political and social groups will eventually be drafted and promulgated. (This is a TKP editorial)