Murari Sharma: Want New Constitution Quickly? Do Something Unusual

The Nepali Congress Party has decided to lead the next government and the UML is claiming a bulky share in it. It is so like the failed Constituent Assembly I. If a new constitution is to be drafted within a year, as they have promised, they should let the Khil Raj Regmi government continue and focus their time and energy on the statute.

Hardly one month has passed since the 19 November elections for the CA II, the popular hope and enthusiasm about getting a new constitution from six months to a year has already evaporated, thanks to disagreements among the major political parties. Some analysts have even suggested that the CA II will repeat the CA I fiasco.

Naturally, the ideal and best option is for the elected leaders to rule and write the new constitution from six months to a year, as most parties have promised in their manifesto. The second best option consists of letting the bureaucratic government continue while the elected leaders target their energy and time to formulate the law of land. Third and the worst option is for the elected leaders to run the government and not deliver the constitution for next several years.

Evidently, the CA I went for the best option and ended up with the worst. Given the political squabble that has erupted in Kathmandu after the recent polls, there is every likelihood that the CA II will follow the disastrous path of the CA I.

The Nepali Congress and UML, the largest and second largest respectively in the CA II, are competing for power and have threatened to sit in the opposition if they did not get what they want. The Maoists, reduced from the largest in the CA I to third in the CA II, have put forward a slew of preconditions to remain relevant. The 33 parties opposed to the CA II elections want to write a constitution outside the Assembly.

In a normal parliament, political parties should try to gain and retain power. But the CA is not a normal parliament; its principal goal is to write a new constitution; and the power game being played will come in the way of drafting a new statute. The CA I did not work well as a legislature or as a constitution writing body. The CA II might follow suit if leaders do not recognize this difference.

Some analysts have prescribed the Indian model for Nepal. The Indian CA was headed by two different speakers, one for making law and the other for drafting the statue. But that was not the reason why it succeeded in delivering the constitution within three years.

India had a different set of political circumstances in 1947: The CA was elected by provincial assemblies; had only 299 members; had 69 percent members from the Indian Congress alone; and was led by a visionary leader Dr. Rejendra Prasad. And the government was led by the illustrious and enlightened leader Jawaharlal Nehru.

Nepal does not have the leaders of Prasad and Nehru’s vision and caliber. Its CA is more inclusive, more complex and more divided. You cannot expect the same result from a drastically different set of circumstance.

That leaves us with the second best option. Although it sounds anti-climactic and anti-democratic at a time when the newly elected leaders are restless to reclaim the saddle of government, letting the Khil Raj Regmi government continue will free the NC and UML of the burden of government, and write the constitution and go for parliamentary election quickly. A small sacrifice now will give them a new and longer mandate to govern.

It is possible. The CA I has covered much ground. The NC and UML should first show magnanimity to the Maoists and Madheshi parties and strive to find understanding on the outstanding issues of federalism and form of government, on which they differ. If the effort fails, they should go for the constitutional provision under which they could approve the new constitution with a two-thirds majority. They can easily muster the number.

The Maoists and other protesting parties will not respect the two-thirds majority and will protest and engage in violence against the government. The government headed by the NC or UML will not be able to maintain law and order and will have to compromise against the voters will to keep the street quiet.

But the Regmi government will be under no such constraints. It will effectively maintain law and order, as we saw in the last several months, and the NC and UML can focus on the constitution without the burden or risks of government. Once the NC and UML have decided to stay out of government, they will have very few issues to fight over. The constitution will be written quickly.

That is why the current administration of Chief Justice Khil Raj Regmi should be allowed to run the country and conduct the local elections while the CA focuses its energy and effort on drafting the new constitution. The Regmi government could also conduct the parliamentary elections under the new constitution and hand over power to the elected government.

In Economics, there is a theory of second best. It suggests that when the first best option is impossible to achieve beneficially, you go for the second best, which if not ideal, but is beneficial.

Since the best option runs the risk of ending up as the worst, the second best option will deliver a new constitution within a year. The NC and UML should let the Regmi government continue for six months within which time the constitution could be written and focus on the statute. It is a bitter pill but a good one to cure our political disease of lacking the capacity to compromise for the greater good.


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