The Dalits of Nepal and a New Constitution - ConstitutionNet

The Dalits of Nepal and
a New Constitution
37
From Charter
to Constitution
- Jill Cottrell
Many groups, during and since the jana andolan II, having
been formulating demands – demands that reflect what
they believe they need for a life of dignity, and in order
to have more control over their own destinies. Some of
those demands have been addressed to the Interim
Government, and some of them have been framed in
terms of what should be in the Interim Constitution (if
necessary amended). This paper recalls that a major
demand of the jana andolan was for a Constituent
Assembly. But not everyone understands what a
Constituent Assembly is: I recently met someone who
reported a conversation with a taxi driver who said
“Everything will be better after the Constituent Assembly;
even wives who have run away will come back”. Most
people have less faith in the Constituent Assembly; the
purpose of this paper is to outline how the demands of
various groups can be reflected in the outcome of the
Constituent Assembly. The paper was written for a
regional Dalit conference, and has been amended to
taker account of the Kathmandu Charter, so specific
examples of demands reflect what Dalits want. But most
of the points made could apply to other groups as well.
What does a Constituent
Assembly do?
A Constituent Assembly is – or should be – a gathering
of the nation. I should like to suggest that it is a body that
writes; and it writes three things, or in three different ways.
The major task of the Constituent Assembly is to write a
small book: that is the Constitution of Nepal. The
Constitution is a law about how the government is
formed, where its power comes from, how its powers
must be exercised, and also about the rights of the
people of the country. It may be the most important
law in Nepal, but it must not be too big. Ideally it should
be possible to print the Constitution as a pocket sized
volume that individuals can carry around as a reference,
on their rights and on the responsibilities of government
(see the Constitution of South Africa which is about 10cm
x 12 cm x 1cm).
The Constituent Assembly will also write a big book – or
probably a set of books: the Proceedings of the
Constituent Assembly. This should be a record of all the
discussion in the Constituent Assembly. The significance
of this is that is shows why the Constitution was written
the way it was. If we take the idea of inclusion, which
has been the main theme of demands since April 2006,
the new Constitution will probably use this expression
very frequently, and no doubt it will be defined in the
Constitution. But the richness of the idea of inclusion
will be hard to capture in full in a legal document like
that. But in the future, people trying to understand or
apply the Constitution will be able to read the full
proceedings of the Constituent Assembly.
Is this of any practical value? It can indeed be. Even today
Indian courts refer to the Debates of that country’s
Constituent Assembly, which sat between 1946 and 1949,
in order to understand fully what the founders of the
nation intended in the Constitution. And not only courts,
but public servants, political leaders and the people can
find guidance in those proceedings.
But the Constituent Assembly will write somewhere else:
on the hearts and minds of the people of Nepal. The
Constituent Assembly will be a major national event;