One more chance

The decision to postpone elections to the constituent assembly came as a damp squib, rather than a bombshell. Perhaps this is an indicator of the leisurely style of the transition to the new political and social order.

Cancellation of June elections has led to disappointment, confusion, anxiety, and even anger among the people. But even those who heaved a sigh of relief did so, not because they did not see the value of a June election, but because they were afraid of the consequences of flawed elections and contested results.

The postponement gives much-needed time for a number of processes. There is an opportunity to provide people with information about the constitution-making process and the role of the constituent assembly, and time to promote the participation of the people in constitution-making. Perhaps voters can now cast their votes knowing its consequences, something that would certainly not have been the case in June.

The longer interregnum allows time to prepare for the elections and for the work and facilities of the constituent assembly. The parties-and other groups who have been focusing solely on elections-have a chance to reflect on the nature of the constitution-making process. The grievances of marginalised communities may be dealt with more systematically. There is also time to explore substantive options for the new constitution.

There are potential pitfalls, of course. An undemocratic system is getting a new lease of life. No significant progress has been made on any constitution and assembly-related matters since the reinstatement of the House of Representatives and the formation of multi-party government a year ago. The government itself has all the problems of a coalition, and these are likely to increase the longer the somewhat unstable coalition has to function. The recriminations and squabbling between the -parties provoked by postponement of elections could divert attention even more from the procedures critical to a meaningful constitution-making process. Already at least one party has said it feels freed from inter-party agreements on the path to a new constitution. For the peace process, the problems in the cantonments will intensify, posing an additional threat to the viability of the interim constitution.

The way in which the interim constitution was negotiated, and the rather cavalier approach of the political parties to it, had already devalued its role as a roadmap. It is possible that it will be further marginalised, as parties haggle over partisan political advantages. Key decisions on constitutional and political structures could continue to be ad hoc and exclusionary, perhaps not always made in a principled way by a small group of party leaders-constitution-making in a crisis. Some even think that perhaps, piece by piece in this way, a constitution will be stitched up by the coalition, making the constituent assembly irrelevant, even unnecessary. It is possible that well before we reach that stage the whole thing will have spun out of control and the transitional arrangements negotiated over such a long period would collapse.

If this comes to pass, a great opportunity will have been squandered to move the country to a stable and just democratic future. The promise of a participatory process culminating in a truly representative constituent assembly, commanding the respect of all communities and regions, could have helped Nepal negotiate a new national vision and identity, and legitimacy for state structures. A democratic and participatory transitional process, at least after the initial ceasefire and peace issues are settled, is essential to consolidate democracy. In this regard the process so far has not served the country well. People feel let down because they are convinced a mid-June election was within the reach but has been allowed to slip away. But the postponement of the elections will give time to reflect on all this, and open the way to a more participatory and legitimate process. One way forward would be to appoint an independent commission to consult widely on constitutional options and prepare recommendations for the constituent assembly.

This will reassure the people that the process is on track and that they are being listened to.

Yash Ghai is professor emeritus at the University of Hong Kong, was chair of Kenya's constituent assembly, and has been senior adviser to the constitution-making processes in Afghanistan and Iraq.