On that fateful day of May 28, 2010, as the midnight hour approached, some members of the CA did manage to rise above party politics. Amidst swirling rumours of a possible state of emergency being declared, women members of the house crossed party lines and came together for a two-hour chant asking for the Constituent Assembly to be extended. Their young male colleagues, uninvolved in the power plays of their seniors outside the house, sat and watched silently. Finally the 'big three' political parties arrived at a three-point program.
Political gamesmanship and formulas for a 'consensus' government, code for who will really be prime minister, are the major concerns of influential politicians in Nepal. The drafting of the constitution doesn't quite seem to consume them as much as one might hope. Constitution-making itself is precariously positioned at present, in terms of disagreement over constitutional choices. Choices that shape the political and legal fabric of a nation, such as the form of government, whether presidential or parliamentary, and even the basis of the federal state, are in question. Other significant areas where convergence is needed include the appointment of judges and the nature and number of fundamental rights.
The Constituent Assembly's thematic subject committee reports – which came to their conclusions on the basis of a majority vote, usually reflected the CPN (Maoist) position. For instance, the committee report on the Determination of the Forms of Governance of the State provided that all power be concentrated in the president. The president is to be the head of state, government and the military; and will be elected by popular election for a five-year term. This version of a strong presidential system is often at odds with the needs of fledging multi-ethnic democracies. A parliamentary system, with the space that it provides for the voices and narratives of all ethnicities and for regional diversity manifest through a multi-party system, might be wiser. Alternatively, convergence could be arrived at via a popularly elected prime minister in a parliamentary style democracy.
The method of appointment of judges is also a cause for concern. The Judicial Committee report provides that the head of state on the 'recommendation' of the Federal Legislative Special Judicial Committee (comprising the vice-chairman of the federal legislature, the law minister, and nine members from the legislature) shall appoint the chief justice and other judges of the Supreme Court. Similarly, structures are in place at the other levels of the court system. Judges of the Supreme Court are to have a term of four years and a retirement age of 65. Further, the powers of the Federal Judicial Committee, astonishingly, include interpretation of the constitution. All of this disrupts the separation of powers between the executive, legislature and the judiciary. This in tandem with a strong president structurally locates all power in the executive.
Finally, the Committee for Fundamental Rights and Directive Principles has provided for around 30 enforceable and justiciable fundamental rights. These include the fundamental rights to food, housing, employment and social security. In principle all nations must prioritise such guarantees. However, to create fundamental rights that the state cannot implement due to financial considerations, implies that drafters inadvertently compromised the absolute mandate of such a category of rights. It is preferable to have a few generic fundamental rights, for instance the right to life. Within it, one can progressively create jurisprudence that includes, for example, a right to food that the state can afford to implement.
Amidst the game of musical chairs for the prime minister's seat being played by all the major and now even some minor political parties, the obstinate terms of engagement of India, and the coy appearances of deposed monarch Gyanendra Shah, the business of making a constitution and therefore a new nation languishes. Nepal's political elites need to recognise the historical terms of reference of the Constituent Assembly. They need to set aside their personal quests for power, and instead focus on coming to a shared understanding of the idea of their country, and craft its character through a constitution.
The writer practices law at the Supreme Court of India.