There is always a larger goal behind the demand for a new and cohesive constitution. One of the main objectives of a fresh constitution is to break from the past. The circumstances which fuel this need vary from one country to another. Historically, the greatest catalyst to a fresh beginning has been independence from an empire or colonizing power. The constitutions of the US, India, Austria, Hungary and Czechoslovakia fall under this category. Another common event that has paved the way for a new constitution involves national revolutions, leading to the formation of a new structure based on new principles. Its best examples are the French constitution of 1789 and the Russian constitution of 1917. Sometimes, the defeat of the existing power structure during a war causing a breakdown in the constitutional machinery also necessitates a brand new beginning, as in Germany in 1918.
Additionally, the need for reorganizing the political situation of a state, as in England in 1653, also leads to a new constitution. Many of the constitutions promulgated post 1990 belong to this category. Of these, Nepal belongs to last group, where the contemporary context has fuelled a desire to break away from the past.
Making of the constitution
No constitution gains legitimacy until it is treated with respect and it often loses its validity if its provisions are abused. Constitution-making is a crucial step in state building since it enables outlining the vision for a new society, while defining the fundamental principles of a state and redistributing power. Countries making transition from conflict or other major political crises undertake this task. In post-conflict times, the constitution making also becomes a vehicle for national dialogue and institutionalization of the peace process. One of the innovations in the constitution-making mechanism is the evolution of a ‘process-driven constitutionalism’, which contends that the process of drafting the constitution is as important as the content of the final document, in order to ensure its ‘legitimacy’. The process necessitates effective participation of all stakeholders.
In this context, the processes involved in constitution making can be divided into two categories—the so-called ‘expert constitution-making process’ (the traditional approach) and the ‘participatory constitution-making process’ (the new approach). The two approaches are different not only in the process but also final outcomes. The new approach is based on the premise that for a constitution to be legitimate, it must have the support of the people. Under this approach, participation is promoted as both a right and a necessity. This is based on the belief that without the general sense of ownership that comes from sharing authorship, people will not respect and obey the constitution.
The traditional approach is, in contrast, a conversation that is conducted by all concerned; open to new entrants and issues, while seeking a workable formula. The participatory constitution-making process, meanwhile, is accomplished through massive efforts to involve the public before, during and after the text is finalized. Overall, the process of broad consultation and participation of the people is a prerequisite. This would also help legitimize the new document since people would have a sense of ownership towards the document.
The participatory approach is also important in identifying real concerns of people, to allow them to understand the issues to be decided by the Constituent Assembly or Parliament and to avoid potential hijacking of constitution making by any force claiming to speak for the people.
From the viewpoint of contents, fundamental characters and the drafting process, four broad models of constitutions emerge.
One, constitution as an embodiment of fundamental rules and basic rights. In this, the constitution sets up the framework of government, proposes how it ought to operate and delineates the basic structure, institutions, and procedures of the polity. As protector of citizens, it also declares certain rights as basic and provides means for their protection. This model is usually prevalent in Western countries including the US.
Two, constitution as a code. In contrast to the first pattern, this model perceives the constitution as a state code to cope with an established order. Any alteration in the case of such constitutions reflects either a change in regime or the necessity to adapt the constitution to define the end of the government. The constitutions of Austria and the German Federal Republic are examples of this rigid model.
Three, constitution as a manifesto of revolution. This model is common in socialist or communist states and is designed for the comprehensive revolutionary reconstruction of an established civil society, based upon the achievement of a social revolution of the most fundamental kind. This is a constitution designed to root out the old order and to reorder its elements in their entirety. It is most common in former Soviet bloc countries.
Four, constitution as a common manifesto of the will and aspiration of people. This model is most closely identified with the ‘Third World’ and combines an expression of what its citizens believe the regime should be with the basic structure of authority that will enable the power holders to rule with a degree of legitimacy. This model defines constitution as a sort of manifesto or creed or testament and an expression of the will and aspiration of the people, and therefore such a constitution is not exclusively a legal document. It is a mixed socio-political and legal document, mostly adopted in Latin American.
The method of constitution drafting that Nepal chose is essentially a part of participatory constitution making. We did it with the belief that without the sense of ownership, people will not respect the new constitution. Ideally a just constitution would ensure a just outcome. In our case, with references to past constitution making experiences, a successful outcome requires a focus not only on the final document but also on the process of producing and adopting it. The foremost essence of the participatory constitution making process needs to be respected by our leaders and CA members if they want the constitution to be stable and respected.
Constitution-making can be transformational, if properly organized. Among the different models of constitutions, the one as a ‘national manifesto of the will and aspiration of people’ is ideal for not only political justice and democracy but also social and economic justice. This is what would best suit our context and be in tune with the will and aspirations of people in Nepal.
The author is constitutional expert and Supreme Court advocate