Recently, the UK Minister of State for International Development, Alan Duncan, visited Nepal to meet prominent leaders and assure them of his government’s willingness to assist the Constituent Assembly (CA). Inevitably, in the days to come, we will witness an influx of leaders from the international community jumping on the bandwagon with their commitments to assist in the constitution-making process. The representatives of the international community in Kathmandu must be actively communicating with their headquarters to find ways and resources for their governments to help the Nepali CA write a constitution. 

It is high time for Nepali leaders as well as donor countries to re-examine the merits of such assistance. Seldom do we say no to free gifts; therefore, it is hard to imagine that this time around, our government will carefully assess the costs and benefits of such proposals, and say “no thank you”. However, the time has come for the international community, which has been emphasising on the ‘value for money’ of their assistance, to reconsider extending their assistance, specifically in our endeavour to write a 

constitution.

Laws in the past 

Constitution making is not a new thing for Nepal. If we consider the Muluki Ain (Main Law of the Land) as a constitution, it was prepared and enforced in as early 1854 by then Prime Minister Jang Bahadur Rana. Since then, Nepal has witnessed at least six other constitutions. Two of them were in the form of interim constitutions (1951 and 2007), two for the establishment or rather re-establishment of the parliamentary form of governance (1959 and 1990), and two for the establishment of a Panchayati form of governance (1949 and 1962). While the 1949 Constitution was never implemented, the 1962 Constitution remained effective for almost three decades.

As far as external input in the preparation of our constitutions is concerned, two (1948 and 1951) were drafted by experts from India on behalf of then Prime Minister Padma Shumsher Rana and king Tribhuvan respectively. The 1959 constitution was prepared by a team of Nepali political leaders appointed by king Mahendra with the help of a British constitution expert, Sir Jennings. The other three were prepared by Nepali themselves belonging to various political and non-political walks of life.

First failure 

A common denominator of previous constitutions is that, elected representatives of the people prepared none of them. In 1951, immediately upon return his from exile in India, king Tribhuvan promised a provision for a people’s elected body in the form of a CA to write a constitution. However, this promise went unfulfilled until the quasi-abolition of the monarchy after the second Janaandolan in 2006. Essentially, the CA (2008-2012) was the first attempt by elected Nepali leaders to write a constitution for the country.   

The first ever CA consisting of 601 members was, however, unable to deliver a constitution within two years. Even after a further two-year extension, the CA was unsuccessful and thereafter dissolved without delivering a constitution. It is an established fact that it was neither the lack of ability nor capacity of the members of the CA that lead to its demise. Instead, it was the lack of commitment and willingness on the part of the leaders of major political parties.

Better things to do 

As the presence in the CA proceedings is an essential measure for how committed the top leaders of the three major political parties were to delivering a constitution in the last CA, we can conclude that they were far from sincere. The majority of senior leaders were absent during the proceedings. This was further aggravated by the fact that many members did not even attend these meetings on a regular basis due to other ‘important’ commitments to attend conferences, seminars, workshops and meetings held both at the local and international level. Many representatives were also absent for days because they were on study visits to other countries.

Most likely, the international support for the CA will again come in the form of enhancing skills of the CA members to draft a constitution through seminars, consultation meetings with expatriate experts, and exposure visits to countries which have successfully drafted a constitution. These activities will once again serve as excuses for CA members to drift away from their main responsibility. 

CA members who have the mandate of the people should first and foremost be already capable of delivering a constitution. Should they require additional assistance, this should been on a need basis. We should not forget that there already exists a pool of competent Nepali constitution experts who are more than willing to provide support. 

No help, best help 

The international community needs to refrain from hosting talk programs, organising seminars, workshops and study tours so that CA members no longer have an excuse to stay unfocused and uncommitted. In this regard, if the nature of support is going to be a continuation of previous ones, one can argue that no action on the part of the international community would be the best action. 

But the international community can still make a significant contribution by assisting in the process of bringing together political forces that have chosen to remain outside of the CA. Although it is too late for them to secure a place in the CA, through dialogue and mediation supported by the international community, some of their demands might also be incorporated into the constitution. Furthermore, the international community can provide support to civil society organisations in facilitating meetings between CA members and political forces outside of the CA, and in initiating much needed national level discussions and consensus building on contentious issues such as the different types of federalism and the forms of governance.

Sijapati was senior economic advisor of UNHCR at its headquarters in Geneva, Switzerland 

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