Nepal Constitution making: Hope for justice to all
by Ashok B Sharma on 05 Feb 2015 0 Comment

The world eagerly awaits Nepal’s transition to a full-fledged republic with a Constitution that aims to empower all segments of 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. The second Jan Andolan (people’s movement) resulted in the overthrow of the monarchy in April 2006. The peace process thereafter led to the promulgation of an Interim Constitution in mid-January 2007, to manage the transition from a unitary constitutional monarchy to a federal republic.


The elections of April 10, 2008 led to the formation of the first unicameral Constituent Assembly of 601 members – 240 directly elected by the people, 335 through proportional representation and 26 nominated. It began its work on 28 May 2008, but could not produce a Constitution within the period of four years. Thereafter the 2013 elections threw up a second Constituent Assembly of 601 members. The senior most member of the House and 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 without producing any tangible results.


India is eager to see the Nepali leaders draft the Constitution. Indian Prime Minister Narendra Modi in his address to the Constituent Assembly in August 2014 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 Seer (Rishi) with insight into the country’s present condition and also the future and do justice to all ethnic groups based on the principle of “Sarvjan Hitay, Sarvjan Sukhay”. Prime Minister Modi had met the Nepalese political leadership across the spectrum.


Nepal is India’s immediate neighbour and also shares borders with China. India, therefore, has to deal with a valuable partner like Nepal with extreme caution. It can’t remain indifferent, but has to gently extend support when sought by the government and people. The young democratic republic is very sensitive to its sovereignty being encroached upon by foreign interference. Yet multiple political parties (about 31) with different interests and representing different ethnic groups has made it difficult for Constitution framers to arrive at a consensus, as advised by some world leaders. Besides, some political leaders have their own ambitions.    


If we compare Nepal with Afghanistan, the latter, being a war-ravaged country, had suffered deeply to come out of the dreaded Taliban regime and draft a Constitution within a span of barely two years. Under the Bonn Agreement, the Afghan Constitution Commission was set up on October 5, 2002; it suggested that a new Afghan constitution be adopted by a loya jirga. 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 endorsed the statute on January 4, 2004.


The 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”.


Yet, if we compare the situation in Afghanistan, even after the drawdown of NATO forces, the Taliban insurgency persists 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 constitutions in 1959, 1962 and 1990 – all under the monarchy. In 1990, the first Jan Andolan 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 to a federal republic has also undergone some amendments.


Though political leaders have agreed to the concept of federal democratic republic, the debate over the form of federalism and creation of different states has become contentious. 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. Critics of this proposal say that high castes will dominate the government. The advocates of the second proposal posit the creation of 10 identity-based provinces on grounds that it would do justice to several ethnic groups.


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


The composition of the second Constituent Assembly is different from the first. 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 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 31 political parties in the Constituent Assembly. Another 100 registered parties failed to get their candidates elected. It has now dawned upon some political leaders to get the Constitution drafted and approved through a majority vote if the path of consensus proves elusive.


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

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