| September 22, 2020

Can you deliver on the expansive list of rights in the new charter?

Can you deliver on the expansive  list of rights in the new charter?

Waris Husain, Adjunct Professor at Howard University School of Law, was recently in Nepal. Hosted by US Embassy in Kathmandu as a constitutional expert, he interacted with judges, lawmakers, legislators and held discussions with common people on the challenges of implementation of the new constitution. Thira L Bhusal and Mani Dahal caught up with Husain during his Nepal stay.


Let’s start with your impression of Nepal’s new constitution. How did you find it?

I think the constitution is a very modern document. As it was created only in 2015, it is different from other constitutions. It enumerates many rights. There are over 30 fundamental rights. There are expansive social, political and economic rights. Often times, in other constitutions, we only see political rights. The constitution of the United States has mostly political rights but your constitution enumerates cultural rights, human rights, employment rights and education rights. So these are more modern concepts.

But now the question is now that you have a very big constitution with these rights, can you implement it? It’s challenge for a developing country. I believe it takes time; it won’t be tomorrow. Many people want it implemented and they want it perfect today. That’s not how constitutions work. Constitutions start the process of conversation. Of course, there are people who believe this is a perfect document or that it’s the worst document. I think it’s somewhere in between. So it offers opportunities as well as challenges.

As you specialize in human rights, how do you assess human rights related provisions in this constitution?

I think they are quite progressive. But again the question is, can they be implemented and how quickly they can be implemented, especially in a country as diverse as Nepal, where the word minority is not accurate because everyone is in minority. In fact, I guess the majority group can only be the youth group, which is quite large. The constitution has 17 clusters as minorities. If you have such a large grouping, you might not be able to accommodate them properly. But again it gives you a tool to address the issues. If you have political will, then you have opportunities.

While there are differing views about this constitution, can we say it’s a living document?

My academic view is that all constitutions are living documents. If they aren’t living documents they are pretty worthless. Because you write a constitution today, but you can’t predict what happens in next 10 years, or 20 years or 30 years. When you draft a constitution you try to make it work over time. So it has to be a living document. When I was talking to people in Birgunj, I was also telling them that the new constitution isn’t the end point but a starting point. They found the idea interesting.

I found people have issues with minority inclusion, demarcation, deprivation, creation of local bodies. Elections for local bodies haven’t taken place for 19 years. Also, you need 159 laws to execute the new constitution. So there are many issues to figure out.

Some citizenship provisions have become contentious. How do you see them?

The issue of citizenship is interesting because it’s a cross-section of so many issues such as Madhesi issue, Tarai issue, human rights issue, national security issue. So trying to separate them is difficult. On citizenship, I found there is conversation happening.

Around 52 countries in the world have similar laws to this but they are changing because constitution can’t have gender discrimination. Conversation is happening now and one positive thing in Nepal is that civil society is more active than in say India or Pakistan. I hope the conversation will continue as this is important issue.

How do you see the constitution from the perspective of representation?

I think there are wonderful provisions as they try to deal with historically disenfranchised groups. But when it comes to inclusion of minority groups, reserving seats is not always the answer. The reserved seats don’t allow actual participation in the party, in the government. In Pakistan and India, we have reserved seats. But there are those who believe the minorities should ask for no more now that they have reserved seats.

Also, as Nepal adopts the mixed electoral system comprising representatives from proportional representation (PR) and first-past-the-post (FPTP) electoral systems, it’s going to be challenging to implement. We have to see how it pans out when the elections are held. Again this presents opportunities as well as challenges.

Nepal recently faced economic blockade due to disputes over the new charter. How do you see these disputes?

A value of a constitution is determined through the values it embodies and is based on how organic it is: how much people of the country take it to their hearts and minds. Whenever you have the EU or India or anyone else making a statement about Nepal’s constitution, it makes it difficult for Nepalis. No constitution is perfect. A good constitution is one that can resolve people’s issues.
Nepal is a small country situated between two super powers, India and China. I also came across concern that if more power is devolved and more autonomy given to provinces, these superpowers will try to exert themselves there. My response is that Nepal need to find unity in diversity. I found that despite their discontents people here say “I am Nepali”. So finding a national narrative everyone believes in will help you shield yourself.

What do you think needs to be done to ensure smooth implementation of new constitution while managing discontents?

I have bad news. There is discontent everywhere, with every constitution in the world. That’s part of the constitutional process. Now we have to figure out how do we tackle the discontents and how do we use constitutional mechanisms to make political compromise and address grievances. If you sit back and think, the constitution offers tools to deal with discontents. That’s important. This is part of democratic process. The document can’t work until you figure out discontents and deal with them in a cooperative and a legal way. In every country constitutional crises are settled through dialogue and you too have to sit down for talks. So, the bad news is that every constitution has problems. But the good news is that every constitution also offers ways to deal with discontents. Therefore civic education can help you with implementation.

Some constitutions are considered rigid while others are thought of as flexible. How do you assess Nepal’s new constitution?

It has to be flexible. Having rigid constitution raises problem. I think this (Nepal’s constitution) is flexible. There is flexibility, that’s why it has already been amended and there might be more amendments soon.

What does the amendment of the constitution within a few months after its promulgation indicate? Does it indicate serious flaws in the constitution or does it hint of its flexibility?

I think it’s bit of both. Some may disagree with few provisions but they agree with major and many provisions. Amendments are necessary. But amendments don’t mean it was a bad document and amendment process is not bad in itself. Indian constitution has been amended over 100 times. That’s not a bad thing. How do you manage discontents in the amendment process is important. My humble view is that in constitutional process amendments can happen. But if people feel included in the amendment process is vital. The language of the constitution amendment is not very important. The important matter is whether the people who feel excluded in constitution writing process feel they can buy into the document and that they were at least consulted and heard in the amendment process. So how included people feel is important and the language of the amendments isn’t important. They should feel that they are part of the process.

How much time do you think it generally takes for full-fledged implementation of a new constitution?

The United States is still busy figuring out how to implement its constitution over the past 200 years. Implementation process has certain steps. First, we have to have local bodies, and then there has to be demarcation of federal units and then devolution of powers. Local body election and determining the rights of federal units is as important.

Are you suggesting that the process of federating the country is also making constitution implementation lengthier?

Yes, since you are restructuring the whole government, it is certainly going to be complicated. But that’s not necessarily bad. The US is still confused about its federal model. There is still debate about whether the federal government can give healthcare or the states have to do it individually. We still don’t know. That’s something we need to figure out over time. So, it is certainly a lengthy process, but we need to move forward. There might be some confusion. So, first, distinguish between a unitary and a federal government.

In federal system, we empower local people, local governments and local systems. Yes it is complicated. It may take time. It can’t be done in two days, not even in a year. So, it’s a multi-generational process. Even the federal system may change over time. You have to respond the changing nature of the society. So we can face many questions. Sometimes, it also depends on how the court interprets the federal system. So, yes, it is lengthy and complicated.

There are some who believe federalism is unnecessary for Nepal, or that a small country cannot properly manage it.

The global trend is towards devolution of power. The power is moving from center to local governments. So it’s a modern concept and Nepal has adopted a modern constitution. The unitary model presents uniformity, straight-line views. But you can’t guarantee that it satisfies everyone. Federalism gives tools to empower local people. Democracy itself isn’t easy. Had it been easy, everyone would have adopted it. So, now we have to figure out the ways to manage the diversity. For instance, you have 135 languages and you have Tarai and hills. So we have to see federalism in a positive light, but it can be tricky.

There is no one model of federalism. Every country has its own type of federal system. The federal system in one country now and in 10 years’ time will be completely different. The US federal system is also described as one of the best in the world, but I am not sure. We in the US are still in a back-and-forth process of formulating laws, sometime giving more powers to the states while sometime appropriating the rights for the federal government.

Don’t be afraid of the federal system. Take Pakistan, which has produced three different constitutions: in 1956, in 1962 and in 1973. The one in 1952 was with a federal model, the next one in 1962 was presidential unitary model and then in 1973 they again adopted the federal model. Even in this federal model, it doesn’t devolve enough powers and now people are more interested in devolution as it’s been decades since it was drafted and things have changed.

In that regard, Pakistan and Nepal have many similarities. India has had one constitution since 1950. It has been amended for over 100 times but it is still one document.

As a constitutional expert, do you find any provisions in Nepal’s constitution that are objectionable?

To be honest, I don’t really see them. And it doesn’t matter what I think. It’s the people of Nepal who should be worried about it.

If a country is like a person, the constitution is like a suit. There is no perfect suit. How the suits look on you is important. May be you get fatter over time and you need to alter the suits. This is how I explain a constitution. A good tailor should think about the person who wears the suit and how the person feels and not about other people. Just like a tailor, the politicians, the judges and lawyers should think about the people. A suit should be fit for you, comfortable for you and it shouldn’t be to show to the world, or to present to the international community. There is no right or wrong suit. If it is fit for you, it is good.

What did you make of your conversations with people from different walks of life in Nepal?

I think people are very open for conversation. That’s encouraging. That helps find a way out. We had very fruitful discussions with diverse communities. Conversations and listening to people is important. Good that it’s happening here. Leaders need to listen more to the people.  This is a big opportunity. Leaders sometime think that they [people] are challenging us, challenging the authority. But it’s the other way. People want to be part of the process. So leadership needs to listen more. So this is a great opportunity.

You have gone through the constitution, studied the amendment and you also listened to people’s discontents. Now, as an expert, do you think solutions can be found from within this constitution?

I believe this constitution can provide solutions. But again it depends on the flexibility of politicians. If people aren’t heard and leaders aren’t listening, then a constitution can’t work. Since you have a flexible and modern constitution, I think it’s workable.

One more important thing is that there must be civic education. This constitution must be explained to the common people. When I was in the Tarai, I found some misunderstanding in the people. It’s not their mistake. There needs to be programs to inform people across the country about the new constitution. So, there should be wide civic education on constitution.