Nepali state is operating in a constitutional limbo. The original mandate of the constituent assembly has constitutionally ended in April 2010. The two extensions of the assembly’s term have been constitutionally dubious, so will be the third extension now being sought. And there are no signs that the next extension will take us any closer to the constitution.
Writing a democratic constitution has never been easy. Yas Ghai, a constitutional expert, says the purpose of building a constitution is not just writing the document. It also has to bring reconciliation among conflicting groups, strengthen national unity, empower the people and prepare them for participation in public affairs and the exercise and protection of their rights, elaborate national goals and values, broaden the agenda for change, promote knowledge and respect for principles of constitutionalism, and enhance the legitimacy of the settlement and the constitution. This is a quite complex political smorgasbord to handle in a short period. Only a few countries like the United States and Nepal in 1990 have been able to draft their constitution in less than three years.
Nepal embarked on an ambitious project of writing its constitution quickly and landed in a constitutional morass. It is a medium size country having political, economic and social challenges of a large country. There are more than 100 racial and ethnic groups and languages in the country. In the hill, two races – Aryan and Mongolian – and several ethnic groups with the Mongolian race coalesce with their own languages and cultures. In the terai, there are several ethnic groups mainly within the Aryan stock with their different tongues and ways of life. Wide chasm exists within and between the regions along majority and minority cultures, castes, and classes to boot. Each group aspires to have its own state in a federal republic of Nepal, made complex by the overlapping population groups. Some groups are even seeking separation from the country. To accommodate all these divergent strands of a complex web of relations and write a consensual constitution is an extremely difficult and time-consuming task.
But in the natural euphoria of victory, political leaders chose an unrealistic timeframe to write the constitution and made a provision in the interim constitution accordingly. Article 64 of the interim constitution stipulates that the assembly will have the tenure of two years from its first meeting unless it dissolves itself before that time. Those two years ended in April 2010. The proviso to the same article allowed the assembly to extend its term by 6 months if the constitution could not be written within two years due to the announcement of a state of emergency in the country.
Constitutional dubiety started as soon as the first two years ended without the constitution written. The assembly extended its term even though there was no state of emergency declared in the country. There was no reason to...