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Walter Kaelin/Inclusive constitutional law

Walter Kaelin presented a framework of inclusive constitutional law within which the Nepali constitution may be formed. Describing the importance of power sharing in fragmented societies, he gave the example of the USSR and Somalia, both of which failed to manage the issues that arose from imposing unity by denying diversity. Thus, the synthetic unity broke down with well-known consequences.

A comparative perspective on constitutions and democracy has evolved, and two basic types of democratic political systems have been identified. One is the majoritarian approach, and the other, the consensual or associational approach. In the first case, the winner takes all but only for a limited period, with the result that over time diverse interests are accommodated by the state. The majoritarian system may be appropriate for relatively homogenous societies, but it fails in countries such as Nepal, where societies are fragmented. Consensual or associational democracies are more likely to allow for power sharing. The electoral system of proportional representation at all levels, coupled with decentralisation and vertical power sharing, facilitates negotiation and compromise, and no one group is able to monopolise the idea of the nation-state.

So far, in Nepal, talk of inclusion in constitution making has not moved beyond a debate on the Maoist demand for a constituent assembly. Whether the constitution should come up for debate in parliament or be entrusted to a constituent assembly is a secondary procedural question. At present, it is important to consider the process of constitution-building and normative questions, such as the nature of the constitution. As per constitutional theory, the ideal constitution is a social covenant that lays out the basic modalities of peaceful conflict resolution. Nepal, at this stage, is faced with the question of how to reach a social consensus.

For a constitution to be legitimate, the process of its making must be deemed legitimate, and must generally reflect the will of the majority. The process must be inclusive; however, because there is often an unmanageable number of groups, the process turns out to be neither inclusive nor representative.

Kaelin cited the example of South Africa where the basic principles of the constitution were decided after detailed deliberations, following which a transitory parliament was elected. The various groups that came to occupy the political space after apartheid trusted this process.

An inclusive constitution provides for proportional representation at various levels of governance, accompanied by inclusiveness in various government organs and bodies. The example of Switzerland, which follows a quota system, may be useful for Nepal. Proportional representation must be complemented by effective decentralisation.
Kaelin added the caveat that while other countries may provide clues as to how to build an inclusive constitution, Nepal must ultimately evolve its own system out of its particular historic and situational context.

Summary Thursday, April 24
Summary Friday, April 25
Summary, Saturday, April 26