A stable government is crucial to writing a constitution

JAN 20 -
Political parties, after almost two months since election to the second Constituent Assembly (CA), have finally sorted out differences about the election results and the debate on who will call the first meeting of the CA. The date for the first CA meeting has now been fixed for Wednesday. Against this context, Kamal Dev Bhattarai and Darshan Karki spoke to Tek Prasad Dhungana, legal advisor to the first CA (2008-2012), about the shortcomings of the last CA, the way forward to ensure that a constitution is produced within a year and the role of the donors in the constitution-writing process.

All major political parties have promised that they will complete drafting the constitution within a year. Is this possible?

If the political parties are to fulfil their commitment, they will need to decide on a few things. First, the new CA should see its work as a continuation of the previous Assembly. Parties should take the decisions and work done by the first CA as reference material and head straight to the process of drafting the constitution. Preparing a draft of the statute will require finalising the defining elements of the constitution. All the issues on which an agreement was reached in the last CA were relatively simple matters. So the parties should sort out the defining elements of the constitution, ie, state restructuring, forms of governance, the electoral system and the relations between the executive, judiciary and legislature. If parties can agree to this and begin drafting the constitution, they can complete the task within a year. Else, it will be difficult to do so.

An informal agreement was apparently reached among parties in the last CA regarding some fundamental elements of the constitution. Since this is now a changed context, do you see the parties building on that understanding?

In the last CA, different concept papers and drafts were prepared at the thematic committee level. While doing so, there were differences of opinion among the various parties. The CA identified those issues and tried to resolve inter-party differences. Accordingly, many issues were formally resolved while political agreements were informally reached on others. However, since these decisions did not reach the formal process, we cannot say that they will remain the same.

The first CA sorted out simpler issues first and left the major ones to be dealt with later on. The new CA does not have the option to do the same. It should reach consensus on complex issues first and then move ahead. Completed work need not be repeated because the last CA also worked within a federal democratic republican framework. It worked to institutionalise the issues raised by the Janaandolan II and the new CA will also be doing the same thing.

What were the shortcomings of the first CA?

The last CA made two kinds of mistakes—some were procedural and others political. A grave mistake that the first CA committed was that it started drafting a constitution without reaching consensus on its defining elements. The next reason the Assembly could not work effectively was that it failed to understand that constitution-writing in a Nepali context is not an independent project. The constitution is not being written because Nepal has just gained independence or because it is a newly formed nation. We needed a new constitution to transform a

ten-year conflict into peace and to institutionalise the issues that were raised. Therefore, the peace process is an integral part of the new constitution. Though, ideally, the peace process should have been concluded before writing a new constitution. There are two important aspects of the peace process which are very important for constitution-writing—army integration and transitional justice, which is the formation of a truth and reconciliation commission (TRC) and a disappearance commission.

How did the focus on government formation affect the functioning of the CA?

This was another drawback of the first CA. Whether it was in the thematic committees or meetings, political party leaders had absolutely no focus on writing the constitution. Their sole focus was the formation of the government, which changed four times during the CA's tenure. Government formation is important and it is natural for political parties to seek a berth in the Cabinet. But when politicians do so at the expense of writing a constitution, it is a matter of concern. If we look at countries where a constitution has been written by a CA, whether it be India, South Africa or the US, leaders have led different forums and committees within the House. And when difficulties arose in writing the constitution, they rescued the process. But this was not seen in our CA. So a long-term government, which will last for at least the term of the CA, must be formed to ensure that a constitution will be written this time.

Quite a few CA members were involved in various controversies but could not be prosecuted in the absence of a specific law. Will a Code of Conduct help prevent these kinds of problems?

This is related to the fourth problem of the previous CA—an absence of procedural compliance. The CA Rules of Procedures broadly outlines eight to 10 points about how CA members should conduct themselves. It also has a provision to form a Conduct Monitoring Committee, which was never formed. CA members were found selling their red passports, stealing electricity, sending someone else in their place to appear for School Leaving Certificate exams and even found drunk and passed out on the streets. Had a Conduct Monitoring Committee been formed, it could have taken suo moto action against CA members, based on the reporting of their misconduct.

This time, the ordinance for the formation of the CA has a provision that bars people convicted of five to six crimes listed in it from being a CA member. This provision will be important if an incumbent CA member indulges in those crimes. In that case, it could lead to the expulsion of a member, resulting in an incomplete CA. The Rules of Procedure for the new CA should address such loopholes. There is a need to enrich the content on the conduct of the CA members too.

Last time, we saw the involvement of the donors in different processes of the CA. What was their role?

Different organisations held various interaction programmes outside the CA, invited CA members at a personal level and held discussions on issues of the constitution. To learn of the degree to which CA members were influenced by such discussions is a matter of study. Still, as the constitution is not only a national but an international document, it is natural for such discussions to be held. It can also help CA members understand the processes of writing a constitution, its principles and international practices. However, within the CA, the Parliament Secretariat only accepted logistical support from the United Nations Development Programme, the Government of India and various other embassies and organisations. It did not accept the role of any donor or foreign agency regarding the content of the constitution.

In what areas should the donor support be concentrated on, with regard to constitution-writing?

Donor agencies could support us when it comes to transitional justice. This issue has become more complicated now because a verdict was initially given for one commission to work for both truth and reconciliation as well as disappearance. A case was filed against this at the Supreme Court and the Apex Court has now directed the government to form separate commissions for truth and reconciliation and to investigate disappearances and also defined amnesty provisions. So different organisations who have worked in transitional justice issues in Brazil, Peru, South Africa,

Sierra Leone, Haiti and Sudan should assist Nepal, not to complicate matters, but simplify them. They can help resolve transitional justice issues by taking into account the value system of Nepal's political parties. Likewise, they should also keep providing logistical support to the Parliament Secretariat.

Lastly, 26 members have yet to be nominated to the CA? Can the first meeting of the CA be held without them?


When the first meeting of the former CA was held on May 28, 2008, we told the Prime Minister and all the top leaders that the CA has three constituencies: the first-past-the-post system (240), proportional system (320) and those that are nominated by the Cabinet (26). The process through which they become part of the CA is more important that the numbers they command. If the CA meeting is held without nominating a single candidate in the 26 seats, various constitutional and legal questions can arise. But our advice went unheeded. To take that incident as a precedent and repeat it would not be good practice. However, this is not to say that 601 members must be present for the first CA meeting. Even if 601 members are elected, they can be absent from the meeting for various reasons. But there is a difference between being absent due to personal reasons and absence due to the process of their nomination being 

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