MODELS OF CONSTITUTION WRITING IMPLICATIONS ON LOCAL GOVERNA

What method or approach to constitution writing is more virtuous? This is often posed as a challenging question. Generally, in democracies, two methods or approaches are seen to be applied to write the constitution. The first is a sequel to liberal democratic ethos and orientations. Most of the written constitutions in the western democracies are dictated by this orientation.


Underneath the liberal democratic approach is the inclination to write constitutions as brief as possible. The constitution is just for laying the general standards and ground norms. This allows the constitution to be flexible and adaptive enough to come to terms with the new changes and needs. In this type of approach to constitution writing, the belief is that no situation can be foreordained nor visualized and fully anticipated in advance. No dynamics can be predicted nor complexities of the time to come may be grasped in totality.


Most of the democratic constitutions based on liberalist ethos and orientation are scripted leaving enough room for interpretation, evolution and development. Brevity and precision is appreciated. The constitution building implies an elicitive approach whereby experiences, practices and interpretations contribute to widen and broaden the scope of the constitution. This is strictly accomplished with an eye for not deviating from the constitutionalism but enriching and strengthening its principles. The United Kingdom is one of the most important examples where the constitution is not scripted as a formal document but embodied and embedded in the political values, customs and conventions.


The parliament legislates where statutory enactments are needed to keep pace with the changing times and needs. However, this is so firmly established that the core democratic values, political and economic freedoms are further developed and their scope enriched, not prejudiced and circumscribed. Another example is the US constitution. Brevity is the soul of the US constitution.


A ten page constitutional document has survived for around two hundred and fifty years setting out the standards of governance, civic freedom and power sharing for a most prosperous and leading super power of the world. The US constitution has not been amended more than thirty times and lived off threats and challenges without losing or prejudicing the basic values of democracy and freedom. The US judiciary has imparted vigour of democratic flesh and blood, resilience to the lean framework laid down in the US constitution through interpretation, reasoning and elucidation. In this type of model, issues pertaining to local governance, with some exceptions, are not shaped up and spelt out properly in the constitution as micro details are left for the parliament to legislate.


Besides the liberal democratic model, another concept opposed to it is followed to write the constitution. This model is influenced by socialist-partisan orientation where the constitution seeks to prescribe every bit and piece. This is the model where political and social determinism guides the writing of the constitution.

The constitution is literally crafted at the expense of constitutional evolutionism and development. It is the prescriptive model often to be degenerated into the form of the political programme or manifesto. The constitution of the then Socialist Federal Republic of Yugoslavia (SFRY) enacted in 1974 was one of the detailed constitutions in modern history. It had over five hundred pages but this could not save that country from being dissolved.

The Indian constitution is one of the detailed constitutions that spells out the mode, structures and process of governing democratic federal India. However, it has been amended for about hundred times. The role of the judiciary in expounding constitutionalism in India has been seminal. The Indian constitution offers a successful blend of these abovementioned two models of the constitution writing by keeping a fine balance between democratic liberal ideals and social justice. The South African model presents a similar blend of democracy, liberal values and social justice that is often termed as socio-economic jurisprudence of the constitution writing.


Nepal's on-going attempt to write the new federal constitution seems to be guided by radical partisan orientations. Political parties are persistently in favor of putting even the minutest choices and details in the new constitution. Even those micro-details that should be reasonably and practically be covered or addressed by the legislations or policies are being argued as the subject of constitutional incorporation as if it alone gives remedy to all kinds of problems and grievances.


However, the positive side of this orientation is that details regarding local governance are likely to find place in the new constitution. There is a crying need for it as failure to stipulate provisions for strong local governance institutions will be a serious lapse resulting into democratic deficit for local governance.