Rana rulers and kings have come up with different constitutions. Except for the 1990 constitution, the people were not consulted in the constitution making process. Even in 1990, consultation was limited and had little impact on the substance of the statute. The process seems to have been dominated by a small body of experts with close connections to parties and the palace. Although the preamble stated that sovereignty lies with the people, the King proclaimed the constitution. The result was exclusion of large sections from the statute making and amending processes. Each constitution represented a limited number of social and political groups and excluded the large majority both from political and economic power. Each constitution was challenged as the excluded social forces articulated their grievances and demanded justice. Even the most progressive constitution of 1990 was shaped by a few dominant forces. It was aimed at greater unification and homogenisation of the state by imposing the culture and interests of the rising middle class.
The Jana Andolan II was led by communities excluded from seats of political and social power. They aimed at further (and final?) transformation of society and state structures. Several agreements between the SPA and the Maoists gave expression to this aspiration. A constituent assembly (CA) was chosen to lay constitutional foundations of a New Nepal. The constitution would no longer be a Kingâ€™s gift, but peopleâ€™s handiwork. For this, the process of constitution making must be participatory. Participation means more than voting to elect CA delegates. It encompasses peopleâ€™s active engagement in defining reform agenda and instruments for social and economic change. People must be able to make submissions to the CA and be part of the decision-making process. There are three reasons for greater participation: Forging a new identity as a Nepali, for inclusive democracy and for social justice. These goals cannot be achieved without peopleâ€™s active participation in the whole process.
The 1990 constitution promised social reform and economic justice. But the power structures excluded the voice of those in need of reforms the most. It is inconceivable that the Constituent Assembly would adopt a true agenda of social justice unless the marginalised are there to argue their case, and vote for it. A mixed member system which the parties have decided on is not suitable for a CA and will not guarantee representation of the disadvantaged communities. There must be specific rules built into the electoral system to ensure this. Inclusive participation requires the active support of the state and political parties, and perhaps establishment of new organs of representation.
Democracy is not only about periodic elections. People need to be motivated and capable and aware of the importance of the structure and state institutions, the nature of politics, the role of parties and social organisation, and their rights as citizens. Without awareness of state mechanisms and an understanding of democracy, a new constitution will fail to take root. There can be no democracy without peopleâ€™s commitment, their ability to participate in public affairs, to pool their interests and lobby for them. The exercise and protection of their rights and realisation of personal responsibility as citizens are also equally important.
Nepalis, especially in rural communities, have only a fragmentary understanding of the institutions and state procedures. A participatory constitution making process should aim not only at raising awareness, but also at enabling the people to contribute to the outcome of the process. Their views must be taken into account in the decisions of the CA. The knowledge of the constitution will help them better understand their involvement in national politics. The fundamental task of constitution making is to re-define the identity of the Nepali people.
Many communities have rejected Nepali identity codified in the 1990 constitution. Each wants the recognition of its culture, language and religion. The focus has shifted to particularistic identities, gender, caste, ethnicity and region. Self-governance, social justice and cultural recognition lie at the heart of their demands. The main goal of constitution-making process will be to strike a balance between national and particularistic identities.
Since the impetus for Jana Andolan II was provided by demands of social justice and new entitlements, it is important to engage in proper negotiations to meet these demands. Values form a critical aspect of oneâ€™s identity. Greater participation and vigorous debates should be the characteristics of these negotiations. In this way, the constitution will serve as social contract among Nepalâ€™s multiplicities; not only as a tool for state building, but more importantly, for nation building.
Prof. Ghai is with constitutional advisory services unit, UNDP