| October 25, 2020
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On Nepali constitution

On Nepali constitution
The road to constitutionalism in Nepal is a long one, filled with dissent, litigation, amendments, and many more "best answers"

During my recent short lecture tour in Nepal sponsored by the United States Embassy in Kathmandu, people there questioned me over the comparative merit of their new constitution. Two types of questions emerged, which demonstrated a binary evaluation of the new constitution. "Comparatively, isn't this constitution the worst/best in the world?" Shakespeare provides the best answer to this question: "There is nothing good or bad, but thinking makes it so."
With proper "thinking" the legal tools offered by a document of political compromise can become transformative in picking apart the threads of disenfranchisement for historically-marginalized groups. But without proper "thinking," a document that meets or exceeds most comparative constitutional standards can be a tool for political or social stagnation. Without proper thinking, those who felt excluded in the drafting of the document may perceive its implementation as an imposition.

The writing or passing of the constitution is significant, but it is the development of "thinking," or what legal experts call constitutionalism, that is more important. It may take generations to achieve "constitutionalism," which Professor Surendra Bhandari has described as the adoption of rule of law by both the public as well as its rulers in a liberal democracy.

During my short tour in Nepal, the passion for issues like federalism and devolution was evident among both legal and non-legal audiences. However, the black-or-white view of the constitution caused a muddling of certain legal terms. In speaking with college students, some expressed the paradoxical sentiment that they wanted more autonomy for their local government but fundamentally disagreed with federalism. Confusion concerning some of these terms can be partially explained by the public discourse which has packaged together many terms under the umbrella of the 'new constitution.'

Yet from a technical perspective, there are two models of governance, unitary and federal. The former was used in Nepal's history by the monarchial rulers, for example, while the latter is a newer model adopted through the 2015 constitution. Usually, a change from unitary to federal model means that a nation is attempting to devolve powers from the central government to the provinces and local governments. This devolution of powers is a worldwide phenomenon, and has been hotly debated in Pakistan since the passage of the 18th amendment to the constitution of Pakistan in 2010.

Concerning federalism, many lawyers and law students wanted to hear about the American model, which has evolved through a long and dynamic legal experiment. When the American constitution was being debated, the publication of the Federalist and Anti-Federalist papers in local newspapers revealed completely opposing views on the role of the federal government in the future of American politics. While Alexander Hamilton argued for the need for the federal government to tax and provide for common defense, Samuel Bryan was writing that "it is truly astonishing that a set of men among ourselves should have the effrontery to attempt the destruction of our liberties."

The passage of more than 200 years has not resolved this eternal disagreement over the needs of the federal government versus the powers of the states or provinces. In the United States, politicians rely on this debate to contextualize disparate state and local laws on reproductive rights, gun control, or LGBTI rights. Lawyers and judges continue to litigate federalism, whether through provincial courts or at the United States Supreme Court, which recently decided cases concerning LGBTI rights and the implementation of universal health care.

Therefore, it is impossible to suggest a "perfect model" for Nepal to adopt concerning federalism, since the tailoring of federalism is a never-ending and dynamic process for each country. American federalism is not Nepali federalism, and even the federalism in Nepal today will likely not look the same two decades from now. The dynamic nature of the development of devolution leaves little room for the "right answer," but requires an attempt to seek the best answer based on political compromise within legal parameters.

In that sense, the questions raised by some lawyers and civil activists concerning issues like citizenship need to be worked out in a manner that allows historically-disenfranchised groups to feel as if they are part of the process. These same groups have complained that they were not given a voice in the constitution-writing process. If that is the sentiment, then it can be partially addressed by including groups most impacted by the controversial constitutional provisions in the amendment process. In some ways, the result is not as important as the process, in this instance.

A constitution requiring amendments is certainly not unusual: the United States constitution had ten amendments which transformed the shape and scope of the constitution before it could be accepted. The US constitution was amended in a transformative manner once again in the 1865, with the 13th, 14th, and 15th amendments, which abolished slavery and granted citizenship and voting rights to former slaves. In India, there have been more than 100 amendments since 1951. Pakistan has had 21 amendments since 1973, with impositions of martial law along the way.

It is not for outsiders like myself to prescribe the language or scope of these amendments, because the value of the amendments is partially linked to how organically Nepali they are. The real question is whether the amendment process will be inclusive enough to reassure groups critical of the constitution that the document allows for them to be included in the policy-making decisions of the state.

The conversation in Nepal's civil society is vibrant when considering the possibilities of a new constitution born out of an earthquake and civil war. The difficult circumstances for the constitution's creation can explain the hope of many people that Nepal figure out the "correct answer" for constitutional issues immediately. Yet the road to constitutionalism is a long one, filled with dissent, litigation, amendments, and many more "best answers" than "right" ones.

The author is a lawyer and law professor in Washington DC