As part of its workshop on South Asian constitutionalism, the South Asia Law Discussion Group hosted Dr. Mara Malagodi, a lecturer at City Law School, London. Dr. Malgodi presented her paper on ‘Constituent Assembly Failure in Pakistan and Nepal’. The primary discussant was Dr. Maya Tudor, Associate Professor of Government and Public Policy, Blavatnik School of Government.

The paper primarily poses two questions: first, why did the Constituent Assemblies in both these countries fail and second, what is the impact of such failure for both the countries? Malagodi began her presentation by justifying the use of a comparative methodology in respect of Constituent Assembly failure in Nepal (2006-2012) and Pakistan (1947-1954). As she pointed out: both the Assemblies functioned as normal legislatures and constituent assemblies, calling for enormous delays; both countries have a history of executive dominance; there was no monolithic vision about the direction of constitution making in either country; and, unlike the nation building exercise in India that promised to be secular, the Assemblies Pakistan and Nepal had to accommodate strong, dissenting religious groups.

In answering the first question, the presentation systematically and chronologically elaborated upon the events that led to the formation of the Assemblies in the respective States, the circumstances within the Assemblies and their progress in coming up with a draft Constitution, while emphasising on the external pressures, particularly from the executive and international donor countries. Apart from distilling out several distinct ex-ante causes for the failure of the Assemblies, Malagodi also drew attention to the ex-post approach of courts in both these countries. She claimed that given the extraordinary weight of people’s expectations attached to the constitution-making process, executive action alone was insufficient to deal with the failure of the elites to reach a consensus within the existing Assemblies – judicial approval was essential to lend extraordinary constitutional legitimacy to the demise of Assemblies, and reboot the constitution-making process. However, Malagodi suggested that these decisions were little more than rubber-stamps for a political decision that had already been taken.

In response to the second question, Malagodi argued that the failure of both the Constituent Assemblies has had long term negative effects on constitutional politics and democratic governance. Despite the fact that Nepal did in fact manage to draft and pass a Constitution the second time around, Malagodi averred that the dissolution of the Assembly had destabilizing effects, bolstering the unaccountable arms of the state, weakening the judiciary and public confidence in the democratic process, and deepening the political cleavages between various ethnocentric groups such as the dominant Parbatiyas and the under-represented, political minorities including the Janajatis, Madhesis, Dalits.

The discussant pointed out that the first, rather than the second, question was better answered in Malagodi’s paper, where the arguments were more fully developed. It was pointed out that it could be helpful to discuss if all the factors discussed by Malagodi were equally responsible for Assembly failure, or if some were more important than others.  Next, the need to identify and elaborate on certain concepts and markers was highlighted, with emphasis on terms such as “authoritarian legacy”, “culture” and “ethnocentrisms”. Apart from other technical points, the discussant suggested a deeper exploration of what lessons from the Nepali and Pakistani experiences could be implemented while setting up future Constituent Assemblies.

The paper shed light into the seldom discussed constitutional frameworks of Nepal and Pakistan, within the larger spectrum of constitutional law in South Asia – a view which was echoed by the discussant. No doubt, the author’s analysis benefitted from her first-hand observation of the political landscape in Nepal during the period when the first Constitution was being drafted. It was interesting how this paper also neatly tied in with some of the others presented at the workshop and successfully evoked questions from participants on the possibility of cross-fertilisation of ideas. Of particular interest is how Malagodi’s work could be contrasted with accounts of the success of the Constituent Assembly in India which, as one presenter claimed, could be attributed partly to the incorporation of the Directive Principles of State Policy – a device used to accommodate strong dissents within the Indian Constituent Assembly. Indisputably, further research into these questions will aid in a deeper understanding of the evolution and contours of constitutional law in South Asia.