CONSTITUTION PROMULGATION No Panacea

With or without the new constitution, Nepal’s present political instability is likely to continue for a long time to come. Given the present political scenario, it is almost certain that no constitution will bring a long lasting political stability,

April 23, 2012, 5:45 p.m. Published in Magazine Issue: Vol. : 05 No.-19 Apr. 20-2012 (Baishakh 08,2069)<br>

Nepal’s eminent constitutional lawyer Ganesh Raj Sharma (retired) wrote in his last article in Himal Magazine (May 2008) that given no agreement on a single fundamental of the new constitution, there are rare chances of a new constitution being drafted by Nepalese political forces. So, will Nepalese get the new constitution only through the backdoor and one that is drafted elsewhere?


As predicted by Sharma four years ago, there is a rare chance of any agreement on some of the core issues of the constitution among Nepal’s political forces and the possibility of its promulgation remains far away. 


Nepal’s 601-member strong Constituent Assembly has spent almost four years since its elections, extending its own life two years beyond the original mandate to make the constitution.  There are still 107 issues, including the fundamental issues of the form of government, state restructuring and judiciary and elections process. 


Although the thematic committees of the CA handed their reports nearly two and a half years ago to the Constitution Committee, the change of four governments in four years, put the task of constitution drafting in a limbo. Two major political parties Nepali Congress and CPN-UML were insisting all along for completion of the integration process before getting down to completing the constitution making process.


After long debates and disputes, the integration process has come closer to an end following an agreement between Maoist leader Pushpa Kamal Dahal Prachanda and other political parties to hand over the Maoist former combatants and cantonments to Nepal Army.


After the efforts of Mohan Baidhya’s supporters to snatch arms and ammunitions from cantonment and manhandle commanders and sympathizers loyal to Maoist leader Prachadna, Prime Minister Baburam Bhattarai and Maoist leader Prachanda suddenly moved a proposal to call Nepal Army to control cantonment. Following entry of Nepal Army into the camp, the number of Maoist combatants to go for voluntary retirement suddenly swelled and more than 6000 combatants have already chosen retirement.


Hattiban Meet

Hoping to see a breakthrough following the agreement on integration, political parties rushed to Hattiban to find some consensus on constitutional matters. However, they are unable to make any headway. Nepali Congress and CPN-UML, which were saying that they will produce the constitution in a few days once agreement on integration was over, are yet to budge on the fundamental issues of constitution.


Nepali Congress is reportedly flexible on citizenship and election process but it has its own stand on governance, judiciary and state restructuring. Similarly, CPN-UML is flexible on electoral process, citizenship and form of government but has its own stand on state restructuring.  Maoists and Madhesis have their own interests and stands.


At the meeting of half a dozen leaders of four political parties, some CA members have already questioned their legitimacy and right to strike deals on the constitution inside a room. Leaders of four political parties, they said, looked like reducing the size of CA from 601 to four leaders.


“The constitution promulgated by consensus of four leaders is unacceptable to us,” said UCPN-Maoist leader Pampha Bhushal. “There is the need to debate the constitutional issues in open parliament.”


Similarly, Nepal Federation of Indigenous Nationalities has also opposed the move of some leaders of political parties. “The constitution promulgated outside the CA is not acceptable to us. Federalism should be based on ethnicity and identity,” said leader of NFIN.


As such, the issue of independent judiciary, accountable government, election process, power to the people and fundamental rights were settled a long time before, some sixty years ago, when Padma Sumsher promulgated the first constitution of Nepal. All other constitutions after that have also settled these issues and Nepal has held several elections too.


However, all these issues including, who is going to exercise the executive power, how power shall be shared between the center and the grass root level, independent judiciary as well as the fundamental rights and questions of accountability are rocking the process. There are differences among major political parties over all these issues.


“We have made a major progress in citizenship issue and there is also certain progress in forms of government, judiciary and state restructuring,” said CPN-UML leader Jhalanath Khanal. “I am confident that we can settle the major disputes of the constitution.”


Along with CPN-UML leader Jhalnath Khanal, Nepali Congress leaders too have their own stands. “There is no question to support an executive president who is going to be another autocrat. We want to continue the present form of parliamentary system,” said NC leader Ram Chandra Poudel. “We are committed to independent judiciary and provinces based on economic capability,” said Poudel.


However, Maoist leaders have outrightly rejected proposals by Nepali Congress and CPN-UML. “We have already sacrificed everything before Nepali Congress and CPN-UML and we cannot do that any more. Our bottom line is executive president and provinces based on ethnicity,” said Dev Gurung.


Two days of exercise in Hattiban Resort, 10 kilometers south-west of the capital, failed to produce any consensus on disputed issues of the constitution. Whether one likes it not it seems that political parties have to go a long way before agreeing on the fundamental issues to be incorporated in the new constitution.


Role of India

At a time when political leaders are engaged with these exercises at home, UCPN-Maoist leader Prachanda has made it clear that Nepal needs Indian support to bring the new constitution. In his interview to Indian daily Hindu, Prachanda admitted that India played a key role in Nepal’s political development. “The 12-point understanding was signed in Delhi, which had the tacit Indian support, otherwise it was not possible. CA elections would not have been possible. There could have been problems with the declaration of a republic. Now also, to take peace and constitution processes to their logical conclusion, without the Indian support, it will be very complex and difficult,” said Prachanda.


Indian minister Pranab Mukharjee was the first person to reveal that the Maoist in Nepal Agreed to listen India’s  advise.  Pranab Mukherjee, India's foreign minister, tells Al Jazeera’s Riz Khan about India’s support to Maoist in January 27,2009.


“In fact, in our modest efforts we try to maintain peace, tranquillity in our immediate neighbourhood but also in the extended neighbourhood. I am just giving you an example when there was trouble in one of our Himalayan countries, our neighbor Nepal, we persuaded the political parties which resorted to guns and violence, the Maoists in Nepal, that they give up violence [and] participate in the mainstream national political activities. They agreed, listened to our advice and now in collaboration with other democratic parties they formed the government, they are leading the government,” said Mukharjee.


“In fact, in our modest efforts we try to maintain peace, tranquillity in our immediate neighbourhood but also in the extended neighbourhood. I am just giving you an example when there was trouble in one of our Himalayan countries, our neighbor Nepal, we persuaded the political parties which resorted to guns and violence, the Maoists in Nepal, that they give up violence [and] participate in the mainstream national political activities. They agreed, listened to our advice and now in collaboration with other democratic parties they formed the government, they are leading the government,” said Mukharjee.



As there are growing differences among country’s political forces over the fundamentals of the constitution, Prachanda’s remarks are meaningful. As Nepal’s imminent constitutional lawyer predicted, there is the possibility to have a constitution formulated outside. In the context, Nepal’s present stalemate will continue whether there is a new constitution or no constitution.

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