24-30 January 2014 #691

We, the people

The new CA has to base its exercise on accepted ideals of national unity, integrity, and equity

During the last Constituent Assembly, members tasked with framing the country’s new constitution were taken by donors on study tours to various places around the world. They amassed air miles on junkets to South Africa, Switzerland, the United States, Ireland, even Ethiopia. The only place they really needed to go was to a next door country which Nepalis don’t even need a passport to visit: India.

Indian voters had been allowed to indirectly elect a CA even before independence from Britain in 1947. The process was driven mainly by the Congress Party led by Nehru and Gandhi who tried to ensure caste, ethnic, and linguistic diversity from within its own ranks by, for example, making BR Ambedkar the chairman of the drafting committee. The Indian CA, therefore, preceded the breakup of India into Pakistan and later Bangladesh. The assembly was partitioned just as India itself was partitioned.

India’s constitution came into effect on 26 January 1950. On Sunday, as India marks its 64th Republic Day, cynics there will again cite the country’s subsequent fragmentation, the corruption, and poverty. But the document has survived and served the country remarkably well.

The framers of the Indian constitution enshrined the new nation’s core values and charted a path to achieving them. The ideals were national unity and equitable development and the path was through democracy and the rule of law. As Granville Austin wrote in The Indian Constitution: Cornerstone of a Nation, ‘No founding document can contain solutions to every situation and leaders in the future should find, within the constitution’s principles, their own way out of difficulties.’

India opted for a centralised form of federalism to safeguard its national unity. The drafters chose not to call their country a ‘federal’ state because of the fissiparous connotation of the word and used the term ‘union’. The other lesson for us here in Nepal may be that no foreigners were involved in drafting the document, it was a constitution for Indians by Indians.

The Indian constitution tried to address entrenched exclusion and social injustice by affirmative action in schools and jobs. The appalling violence of partition led to the adoption of secularism almost as a state ideology. But secularism in India did not have the negative anti-religious connotation of the word’s translation in Nepali (‘dharma niripekshya’), but meant freedom of religion.

To be sure, the Indian Constitution failed to prepare democratic institutions for eventualities like the Emergency of 1975-77, the over-centralisation of democratic institutions, the chronic inability of the Union government to resolve problems like insurgencies, entrenched poverty, inequality, and morbid corruption. India’s federal model was always fraught, but the recent breakups of Andhra Pradesh, Bihar or Uttar Pradesh states have more to do with the failure of regional leaders to accommodate dissent than with a failure of the constitution.

Here in Nepal, as elected members of the new Constituent Assembly sit down one more time to try to draft the constitution, there are hopes and doubts about whether this lot will be able to do within one year what the previous assembly could not despite four tenure extensions.

Learning from India, it would be useful for our CA to base its exercise on accepted ideals of national unity, integrity, and equity. The way to national unity is by making Nepal more of a ‘union’ than a ‘federal’ state. At the same time, we will safeguard the country’s integrity by making it less unitary and by dismantling the Kathmandu centralism that led to neglect and exclusion. And the path to equity and equality is through meaningful democracy, strengthening democratic institutions, enshrining the separation of powers and the rule of law.

As Austin wrote in a 1999 preface to his book: ‘Constitutions do not ‘work’, they are inert, dependent upon being ‘worked’ by citizens and elected and appointed leaders.’

The constitution is a working document, a work in progress, that can be improved as we go along. We don’t have to foresee all contingencies, just defend our agreed core values.

Read also:

It’s the constitution, stupid

Now, the constitution, GEORGE VARUGHESE

Wrong mechanism

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