Constitutions and Constitution making elsewhere

There are 192 member states of the United Nations. A few have no written constitution (which means that they do have laws about how government is formed and so on, but they do not have one document, and some of their rules are a matter of convention rather than of law). These countries are, notably, Israel, New Zealand and the United Kingdom. (Israel does have some major laws regulating important aspects of government, and the Knesset (Parliament) is currently going through an exercise designed to produce a written constitution for the country).

All other independent countries have constitutions, and some of them have had a number of constitutions. Some are quite short and others are long. Generally speaking, modern constitutions are longer than old ones. There are several reasons for this. One is that ordinary people are often more involved now in making constitutions and they really want to see their own concerns reflected there. Secondly, governments do much more now than they used to do. Thirdly, when older constitutions were drafted, it was not clear how they would be used - especially by people going to court to enforce the constitution. Now it is clear, at least in some countries, that many disputes will have to be decided by courts. The drafters of the constitution try to make their words clearer - which often means that more details of the intended meaning are included. For these various reasons, the Constitution of South Africa is about 10 times as long as that of the United States.

There are also different legal traditions that lead to rather different legal documents. Some countries are more used to laws that are expressed in general terms, and their constitutions also tend to be more general. Other countries have a tradition of being much more detailed in their laws. Nepal fits more into the latter tradition, with India - though Nepal's constitution is not nearly as long as that of India (which is nearly three times as long as that of South Africa!)

Constitutions of socialist countries, like China, tend to make statements about what the state does, rather than what the state has a duty to do. There was no expectation on the part of those who drafted the Constitution of the People's Republic of China that citizens would start to take the state to court to enforce the provisions of the Constitution.

The Variety of Processes

There is a great deal of previous experience in making constitutions. The oldest constitution in the world today is that of the USA. For details on it, click USConstitution.org. Most other constitutions were made during the 20th century. There is no standard process for making constitutions. The following table gives an outline of the process in a few countries:

USA 4 months (1787)	Fiji 27 months (1995-7)	East Timor 6 months (2001-2)	India 3 years (1946-9)	Kenya 3 years (2001-4)
Constitutional Convention -representatives from each state	Constitution Commission	Public consultation	Constituent Assembly	Constitution Commission
Debate in Convention	Public consultation	Constituent Assembly elected	Committees of Constituent Assembly reported	Hearings around country
Committee of Detail prepared rough draft	Report to Parliament	Sat in committees	Full Assembly adjourned	Commission produced Draft
Further debate	Some changes by Parliamentary Select Committee	Reports put together for full draft	Drafting Committee produced draft constitution	Public consultation
Committee of Style prepared final draft	Passed by full Parliament	Public Consultation	Draft published for comment of Constituent Assembly and public	Constituent Assembly met
Constitution adopted by Convention		Plenary adopted	Draft debated, passed and adopted by Constituent Assembly	Divided into committees
Approved by individual states		Approved by UN		Debated and adopted final draft Constitution
				Changed by Government
				Referendum rejected draft

All these processes involved either a Constitution Commission or a Constituent Assembly or both. Some involved significant amounts of public consultation (notably Kenya and to a lesser extent Fiji). Only Kenya involved a referendum (and that was not in the original scheme of things). Some took far longer than others; East Timor's process was very short because the United Nations was putting great pressure on the Constituent Assembly to finish. All of them except Kenya led to the adoption of a new Constitution.

High Level Commission on State Restructuring

The Interim Constitution requires that this Commission be set up for the drafting of a Constitution.

Progressive Restructuring of the State:

1. Inclusive, democratic and progressive restructuring of the state shall be made to bring about an end of the discrimination based on class, caste, language, sex, culture, religion and region by eliminating the centralized and unitary form of the state.
2. A High Level Commission shall be constituted to recommend for the restructuring of the State in accordance with clause (1) above. The composition, function, duty, power and terms of service of such Commission shall be as determined by the Government of Nepal.
3. Final decision of restructuring of the State shall be as determined by the Constituent Assembly.
   
   

The function of the Commission is to be making recommendations on restructuring of the state. That could be very wide - everything that seems to be wrong with the state could come under this heading. But in fact "restructuring of the state" seems to be limited (by clause (1)) to (i) bringing about an end of discrimination based on class, caste, language, sex, culture, religion and region and (ii) eliminating the centralized and unitary form of the state. And these are not separate but linked - ending the discrimination is to be by eliminating the eliminating the centralized and unitary form of the state. If we link this to the commitment in the Interim Constitution to federalism, we see that the real focus of the work of the Commission is on federalism.

Not only is this narrow, but it is not at all clear that federalism will achieve the end of discrimination, even if it has a lot of other advantages.

Other points to make are that there is no indication that this will be an independent commission, and that there is no indication that it is supposed to consult the people. Most bodies these days are composed by bargaining between the parties in government. A commission composed like this would not be independent. It could carry out its work simply by inter-party negotiations.

Of course it could be very different: there is nothing to stop government appointing a genuinely independent body, and mandating it to consult widely, including with the people, and to report direct to the Constituent Assembly. It could also be given a really wide mandate, making it more like a Constitution Commission.

A Referendum?

The Interim Constitution does say that there can be a referendum on any question for which a decision making mechanism is not provided for. The first decision of the Constituent Assembly is to be about the future of the monarchy - so there can be no referendum about that. Maybe the drafters of the Interim Constitution had in mind only the provision about the monarchy, thinking that any other question could go to a referendum

But the Interim Constitution is also very clear about how each individual provision of the final Constitution is to be adopted: consensus to be aimed for, but ultimately by a two-thirds majority. Is this not a decision making mechanism for each aspect, leaving nothing to go to a referendum?

Could there be a referendum on the whole question - "Do you accept this Constitution?" It would be very surprising for the drafters of the Interim Constitution to intend that this should be possible, but not to make it clear. And the phrase "any question" seems to imply something smaller than the single question about the whole constitution.

We are left in uncertainty - a weakness of the drafting of the Interim Constitution. And if we conclude that there is nothing that can go to a referendum, we are concluding that a provision about the Interim Constitution is meaningless: which is also very unsatisfactory.

The whole issue may become relevant in Nepal when the Constituent Assembly comes to discuss how the new Constitution should be amended.

---