Round The World

New Delhi, 3 February 2015

Nepal’s Constitution

INDIA, WORLD AWAIT OUTCOME

By Ashok B Sharma

India, with the rest of the world is watching with eagerness the transition of Nepal to a full-fledged republic with a Constitution that aims to empower all segments of the society. The small Himalayan country has already shown the world how to abandon the path of bullets and opt for ballot and to assimilate insurgents into the mainstream. However, a new draft Constitution continues to be elusive.

New Delhi is eager to see Nepali leaders draft the Constitution on their own. In August last year, Prime Minister Narendra Modi in his address to the Constituent Assembly appreciated the objective of a federal democratic republic and Nepal’s sovereign right to choose its own destiny. He hoped that the framers of the Constitution would work with the spirit of a rishi (seer) with an insight into not only into the country’s present condition but also into the future and do justice to all ethnic groups based on the principle of “Sarvjan Hitay, Sarvjan Sukha” (everyone’s interest and happiness). Modi had met the political leadership in Nepal across the entire spectrum.

Nepal is India’s immediate neighbour and also shares borders with China. Therefore, India needs to deal with a valuable partner like Nepal with extreme caution. Not that it should remain indifferent, but lend support when the government and the people of Nepal seek assistance. However, the young democratic republic is very sensitive to its sovereignty being encroached upon by interference by foreign powers. With multiple political parties (about 31) in the fray having different interests and representing different ethnic groups has made difficult for Constitution framers to arrive at a consensus as suggested by some world leaders. Besides some political leaders have their own ambition.   

Recall, the second Jan Andolan (people’s movement) resulted in the overthrow of the monarchy in April 2006. The peace process that begun led to the coming into force the Interim Constitution early next year in mid-January to manage the transition from an unitary constitutional monarchy state to a federal republic.

The elections in April 10, 2008 led to the formation of the first unicameral Constituent Assembly of 601 members – 240 directly elected by the people, 335 elected through proportional representation and 26 nominated. It began its work on May 28 2008, but could not produce a Constitution within a period of four years. Thereafter, the 2013 elections threw up a second Constituent Assembly (CA) of 601 members.

The senior-most member of the House and a former Prime Minister Surya Bahadur Thapa assumed chairmanship of the CA on January 20, 2014 and administered the oath of office to 565 lawmakers at the first meeting of the Assembly on January 21, 2014 were the leaders of the Nepali Congress, CPN-UML and UCPN (Maoist) pledged to draft a new Constitution within a year. This self-imposed deadline is now over with producing any tangible results.

If we are to compare Nepal with Afghanistan in the South Asian region, the latter, being a war-ravaged country, had suffered a lot to come out of the dreaded Taliban regime and draft a Constitution within a span of barely two years. As per stipulations of the Bonn Agreement the Afghan Constitution Commission was set up in October 5, 2002 that suggested that a new Afghan Constitution be adopted by a Loya jirga (Grand Assembly). The loya jirga was required to convene within 18 months of the establishment of Afghan Transitional Administration, which was established by the Emergency loya jirga in June 2002. After some delay, the proposed Afghan Constitution was presented to President Hamid Karzai on November 3, 2003. A loya jirga began December 14, 2003 (four days after schedule) in Kabul and was endorsed January 4, 2004.

Afghan Constitution was drafted when foreign troops were present in that country. But this is not the case with Nepal – there is no presence of any foreign troops, the country is sovereign. The Nepali leaders on their own came to negotiate peace and the people gave up “bullets” for “ballot”. But if we compare the situation in Afghanistan, even after the drawdown of NATO forces, there is still presence of Taliban insurgency in Afghanistan and the government is trying to negotiate peace. Certain ethnic groups like Uzbeks, Turkmens and Baluch resented that the Constitution did not reflect their culture and interests. 

Nepal has the experience of drafting Constitution in 1959, 1962 and 1990 – all these under Monarchy. In 1990, the first Jan Andolan had brought multi-party democracy back to Nepal, but it was short lived. After the overthrow of the monarchy in April 2006, the experiment for drafting a new Constitution for the republic is in process. The Interim Constitution in place to facilitate transition from a unitary constitutional monarch state to a federal republic has also undergone some amendments.

Though the political leadership have agreed to the concept of federal democratic republic, the debate over the form of federalism and creation of different States has become a contentious issue. Two competing proposals are on the table – one is territorial and administrative federalism and the other is identity-based federalism. In the proposal for territorial and administrative federalism, creation of seven provinces have been proposed, namely Far West, Lumbini, Karnali, Gandaki, Bagmati, Janakpur and Koshi. The critics of this proposal say that high castes will dominate over the under privileged. The advocates of the other competing proposal for creation of 10 identity-based provinces say that it would do justice to several ethnic groups.

Other issues where leaders are failing to reach a consensus are on the details of the form of governance, electoral system independence of judiciary, system of direct and proportional representation. The Madhesis issue has also become a contentious issue. Due closeness in culture with some neighbouring States in India, many mistake them to be pro-Indian even though they have been Nepali citizens over several generations.

The composition of the second Constituent Assembly is different from the first one. The Communist Party of Nepal (Marxist) of Pushpa Kamal Dahal (Prachanda) which was dominant party in the first Constituent Assembly with 229 seats has been reduced to only 80 seats in the second Constituent Assembly, where Nepali Congress of Prime Minister Sushil Koirala has 196 seats followed by United Communist Party of Nepal (Maoist) with 80 seats.

Nepal has a large network of fragmented civil society groups that are exerting pressure along with the demands of as many 31 political parties in the Constituent Assembly. There are also about 100 registered parties who failed to get their candidates elected. The second though has drawn upon some political leadership to get the Constitution drafted and approved through a majority vote if the path of a consensus fails.

One can hope that Nepal drafts a vibrant Constitution enough to do justice to the cross section of its cultural and ethnic diversity. A vibrant Nepal will not only be in the interest of India, but also South Asia. ---INFA

(Copyright, India News and Feature Alliance)