CONSTITUENT ASSEMBLY Constitutional Conundrum

As May 28 draws closer, concerns over whether the new constitution will be promulgated by that deadline are naturally growing. The activities going on inside and outside the Constituent Assembly indicate that the new constitution, even if it is promu

April 8, 2011, 5:45 p.m. Published in Magazine Issue: Vol. : 04 No.-20 April 08-2011 (Chaitra 25,2067)

Now retired, Nepal’s eminent constitutional lawyer Ganesh Raj Sharma five years ago predicted that Nepal would have to introduce many constitutions before the country stabilized and argued no constitution, the best or the worst, had a solution to Nepal’s political problems.

Given Nepal’s geo-strategic location between two powers, India and China, Nepal had a long  way to go before it gained the constitutional stability, Sharma had said.

Writing a constitution was not a difficult task. The best constitution could be produced within a month as announced by professor Surya Subedi of Loyed University of London. The difficult task was to make the document work for decades to come. Sharma used to assert that even the god would be doomed to fail in Nepal and no human was an exception.

Sharma’s remarks never rang truer than today. A number of political and ethnic organizations have already declared that they will scrap the constitution in case it fails to protect their interests.

CA members Bishwendra Paswan and Sadural Miya Haq threw out the chair of the Constitutional committee when it rejected their amendment proposal to incorporate in the new constitution.

“If the new constitution does not recognize the rights of Dalits and minority Muslims, we will burn its copies as soon as it is promulgated,” said Paswan. “We will go for a long struggle against the state.”

Minority Muslim’s rights should be recognized in the constitution, demanded CA member Sradural Miya.

“If the CA ignores our demands, we will have no option other than to go for a rebellion,” he said.

These two smaller parties are not the only ones to challenge the future constitution. Other political parties and ethnic groups hold equally strong views.

“If the present constitution does not declare ‘one Madhesh, one Pradesh’, we will call a massive uprising in the Terai. In the state restructuring process, Madhesh should be given autonomy with the right to self-determination,” said Rajendra Mahato, chairman of Nepal Sadbhvana Party.

Ethnic and regional groups in various parts of Nepal have been pressing on similar demands.

“The new constitution should recognize the rights of ethnic groups, local autonomy and right to self determination,”said Rajendra Lingden, leader of Khumbuwan Mukti Morcha.

Nepali Congress and CPN-UML have also similar tones. “Nepali Congress wants integration of Maoist combatants before the promulgation of the new constitution. If the constitution does not incorporate basic ingredients of democracy, we will not accept it,” said Arjun Narshing KC, spokesperson of Nepali Congress. “The new constitution must guarantee pluralism, loktantrik values, the
right to speak, the rule of law,” he said.

UCPN-Maoist has its own reservations. “The new constitution should establish the Federal People’s Republic Nepal. We don’t want a multiparty democracy as proposed by CPN-UML and Nepali Congress as people have already rejected their model of democracy,” the party leaders harped.

These statements and remarks show that the new constitution is also not going to give a long term political solution and soon after its promulgation the countdown for another constitutional exercise will

As experts see there is enough basis to write the new constitution, and in fact, the Constituent Assembly may promulgate Nepal’s sixth constitution by May 12, 2011. But the question remains how long will it last or will all Nepalese accept the document?

Given Nepal’s extraordinary geo-strategic position between Asia’s two giants, Nepal will need to wait for securing constitutional stability. The recent indications in the Constituent Assembly and outside it showed the coming constitution drafted by CA will face the fate of five previous constitutions.

According to Constituent Assembly Secretariat, CA held 107 meetings till so far. Interestingly, except the Committee to Determine the Bases of Cultural and Social Solidarity, the reports of all seven committees have disputes in them. There are still 78 disputes in the reports of six committees.

Although issues of basic fundamental rights like liberty, equality and right to life, right to property and freedom of expression were settled long time back, there are 11 disputes in the report of the Fundamental Rights and Directive Principles Committee. There are 33 disputes in the report of Committee to Determine Legislative Organs and 4 disputes in the report of the Committee on Determination of Forms of Governance.

Although Nepal has a long practice of Independent Judiciary, there are 8 core disputes on them. There are 2 disputes in the report of Committee on Protection of National Interests. Most of the disputes are there in the report of Constitutional Committee.

From issues like the national animal to the national flower and the national flag and the national anthem, parties and groups have held divergent views. Nobody wants to budge from their stands.

“National flag and national animal should be changed in the context of a new secular Nepal. “Cow and national flag are symbol of Hindu Kingdom and new Nepal should not accept them,” said UCPN-Maoist leader Dev Gurung.

A high level committee has already been set up under the chairmanship of UCPN-Maoist leader Pushpa Kamal Dahal Prachanda to settle the disputes and start to write the first draft of the constitution. As
the disputes remain unsettled, the Constitutional Committee on March 30, 2011 decided to extend the term of the dispute resolution sub-committee till April 14, 2011.

“There are now 30 outstanding issues related to 4 committees,” said Nilamber Acharya, chairman of Constitutional Committee. “If they are settled, the core issues will be resolved, and we will draft the
constitution in a month.”

Thirty outstanding issues include five related to Committee on Determination of Forms of Governance, 11 related to Committee on Fundamental Rights and Directive Principles, two related to the
Committee on the Protection of National Interests and 12 to the Constitutional Committee.

The parties are yet to agree on the Preamble, constitutional amendment, name of constitution and miscellaneous issues. “I am still hopeful that the parties will produce the constitution by May 28. This is their obligation,” speaker of the House of Representative told New Spotlight.

The disputed issues were settled six decades ago but parties and groups are raising demands indicating nothing will pacify them. The statements, remarks of politicians and all these disputes on the
clauses of Nepal’s sixth constitution show that the new constitution may be short lived even if it is promulgated by May 28.

Another eminent lawyer Kushum Shrestha also holds the opinion that Nepal’s geostrategic location needs to be looked at in the process of constitution making. “Nepal, a weak but strategically important
country between two powerful nations, has a significant list of sensibilities. These factors always contribute to the stability of Nepal’s constitutional process,” said senior advocate Shrestha. “There
are certain fundamentals in the new constitution.“

American scholar late Leo Rose left us a very valuable book Strategy for Survival: Nepal’s Case. “The constitution of Kingdom of Nepal 1990 has strands of seamless web and new constitution too incorporate these.” “If we deviate from strands of seamless web, we will face unimaginable consequences,” writes Shrestha in his article published in December 2006 in the bulletin of Civil Society Alliance for Political Reform (CiSAPR).

According to Shrestha, for a vibrant democracy, rule of law or constitutionalisation is a prerequisite. In writing the future constitution for Nepal, strands of seamless web including national unity, democracy and constitutionalism must be considered. A country like Nepal has to be prepared to face challenges coming from multi-language, multi-religion and multi-culture realities and compulsion of Nepal’s geo-strategic position.

Our experiments in the last 60 years of modernization have shown that political turmoil and slogans of changing constitution were the reflections of our fate of life and no constitution will give real solution without factoring the geopolitical realities in a globalised world.

According to the noted constitutional lawyers, Nepal’s two neighbors are cause of problems and they are not the solution at all. What Nepal has been facing is the continuation of a protracted conflict between
Asia’s two giants. As there is no immediate hope for warming of their relations, Nepal will have to go through a very difficult phase. Whatever political and constitutional course Nepal takes, its status as an independent nation cannot be changed. “One of the advantages of Nepal is that it links India’s vast land of Ganges plan with Tibetan Plateau that is a prerequisite for them,” said the lawyer.

One may wishfully look for consensus among all political forces to promulgate the new constitution by May 28. For stability, Nepal needs a new development based on ground realities. As long as the situation in the region is hostile and hot, Nepal’s constitution will continue to be at jeopardy.

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