– By Prof. Andrew Arato

Prof. Andrew AratoIf it successfully guides the democratic transition, it is the interim constitution that will establish Nepal’s place among the most advanced forms of constitution making in the modern world.

The interim constitution currently discussed by the parties is a project of the greatest possible importance. It is to regulate Nepal’s transition to Democracy for a considerable period, a minimum of two and a half years including both the provisional arrangements before and during the period of elections for a constituent assembly, as well as the duration of the assembly itself. Under an interim constitution, the constituent assembly itself would be bound to procedural rules. If under these rules a new constitution is not successfully drafted and enacted, a new assembly would have to be elected still under the interim constitution that would then remain the country’s basic law possibly for another two years.

Being Nepal’s constitution for this extremely important and extended period does not exhaust the importance of the interim constitution. If well designed, it can solve three fundamental problems. It can protect the country from dictatorship for the whole transitional period by subjecting all power holders both to its rules and to the separation of powers. That is why there must be an interim legislature and constitutional court in the document, and not just an interim executive as in older provisional government formulas. Second, being part of a two stage process it can provide the country important learning experiences with what works and what does not on the constitutional level so that the constitutional assembly can then design a better, more permanent constitution. And finally, if enacted through the inclusion of at least the main political forces and with the support of society, the interim constitution can solve the problem of how to begin legitimately a democratic order when a fully democratic beginning is impossible, since elections have not yet taken place and someone has to provide the rules and the framework for their organization.

While the attention in Nepal is mainly on the (hopefully) coming constituent assembly, the making of the interim constitution is of equal importance. It takes precedence to the question of disarmament, because parties can disarm only when they have sufficient guarantees concerning the political order in which peaceful competition will take place. The negotiation of the interim constitution seemed very long and difficult, only because of the originally mistaken promise in the so-called 8 Point Agreement that such an important task could be accomplished in two weeks. In international comparison (Poland, Hungary, Bulgaria, and South Africa) the process of making the Nepali interim constitution has not been particularly long. Moreover, as the one decision that seemed to have been made early indicates, compromise on all contested issues has been difficult, but certainly not impossible. It is completely right that the fate of the monarchy would not be decided by the unelected negotiators of the interim constitution. Though they do include the major forces of Nepali society, for this grave choice they do not have sufficient democratic legitimacy. So the choice really came down to either the constitutional assembly or the people through a referendum making the choice, the latter voting during the elections for the constituent assembly when the electoral participation will be the highest possible. It seems to me the choice for the referendum formula, following Italian and Greek examples would be the wisest because only the people’s legitimacy can be counterpoised to the traditional and religious symbolic power of a king. But a constitutional assembly too could make the choice as long as it was not a topic for mere bargaining concerning a variety of unrelated issues. It is certainly however a mistake to argue that if the people in a plebiscite chose to retain the monarchy; this would increase its powers. The question of the powers of the executive, monarchical or republican or mixed would be fully left up to the assembly in either case.

In a way, the other contested issues should be, in principle, easier to solve because they involve numbers and distributions. How many seats in the interim legislature and how many ministers and state secretaries each would get, these are questions that can be solved through numerical compromise. The Maoists regard themselves as one and the 7 parties as one, and thus in effect ask for a 50-50 distribution on everything. The 1/3: 1/3: 1/3 formula on the interim legislature in their constitutional draft would really give them half, because they would choose according to this proposal ½ of the civil society members. The 7 parties however regard them as merely one of 8 parties. Between1/8 and ½ the compromise is around 30%, and I would not be surprised if in the end the number of agreed upon Maoist candidates would be around that figure. Undoubtedly, with the ministers and the state secretaries the type of ministry matters more than mere number. But here the formula must be that neither the Maoists nor the party closest to the current power structure, Congress, should get the power ministries controlling the means of violence: defense and home, in charge of the military and the police. Presumably, neutral technical experts or experts of the least dangerous parties (i.e. parties without militias and armed forces) can be selected for these positions.

If an agreement were concluded along these lines when the summit talks are held or and the days after, and I am very hopeful that this can happen, the so-called weapons management, at least acceptable for the electoral period should not be an impossible problem to solve. I am not an expert, but I have full confidence in the guidance of the UN Representative Mr. Ian Martin in this area. What I am more concerned about is the legitimacy of the interim constitution once it is drafted and enacted. Given past experience in other countries, there will certainly be forces and politicians who will denounce it as a mere elite agreement, giving in to someone’s pressure, or regard it as at best an insignificant step toward the much more important stages of elections and constituent assembly discussions. These attitudes would be mistaken, gravely so. The elites are in position to make an interim constitution because of a great democratic social movement rooted in civil society, the Jana Andolan II. Civil society actors cannot directly produce constitutional structures, but it is their influence and pressure that brought just these parties together and even now forces them to all stay and come to an agreement when there are both internal and external actors who might wish otherwise. The formulas agreed upon are or will be ones that the parties think will be acceptable to these civil society forces. While it is true that far more public discussion, debate, information and criticism would have made the process more legitimate and more significant in the eyes of ordinary citizens, and its extended nature more understandable, the fact is that coming in the train of a great popular movement, with the agreement of the 8 parties the interim constitution will be an expression of the democratic aspirations of both that movement and the best ideas that can be found in all of these parties. If it successfully guides the democratic transition, it is the interim constitution that will establish Nepal’s place among the most advanced forms of constitution making in the modern world.

(The author is a Professor at the New School for Social Research, New York. He visited Nepal in early September and delivered talk programs as an expert on constitution-making and can be reached at [email protected])

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