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Participatory Constitution Making in Nepal

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Participatory Constitution Making in Nepal PARTICIPATORY CONSTITUTION MAKING IN NEPAL Issues of Process and Substance Post Peace Agreement Constitution Making in Nepal Volume I Post Peace Agreement Constitution Making in Nepal Volume I PARTICIPATORY CONSTITUTION MAKING IN NEPAL Issues of Process and Substance Edited by Budhi Karki Rohan Edrisinha Published by United Nations Development Programme (UNDP) Support to Participatory Constitution Building in Nepal (SPCBN) 2014 United Nations Development Programme (UNDP) Support to Participatory Constitution Building in Nepal (SPCBN) UNDP is the UN’s global development network, advocating for change and connecting countries to knowledge, experience and resources to help people build a better life. United Nations Development Programme UN House, Pulchowk, GPO Box: 107 Kathmandu, Nepal Phone: +977 1 5523200 Fax: +977 1 5523991, 5523986 ISBN : 978 9937 8942 0 3 © 2014 United Nations Development Programme Nepal Book Cover: The painting on the cover page art is taken from ‘A Federal Life’, a joint publication of UNDP/SPCBN and Kathmandu University, School of Art. The publication was the culmination of an initiative in which 22 artists came together for a workshop on the concept of and debate on federalism in Nepal and then were invited to depict their perspective on the subject through art. The painting on the cover art titled ‘’System Unfolds…” is created by Bidhata KC. DISCLAIMER: The views expressed in the book are those of the authors and do not necessarily represent the views of UNDP/ SPCBN. PREFACE A new Constitution for a new Nepal drafted and adopted by an elected and inclusive Constituent Assembly (CA) is a key element of the Comprehensive Peace Agreement (CPA) of November 2006 that ended a decade long Maoist insurgency. Elections were held under the Interim Constitution of 2007 and inclusive 601 member CA that also functioned as a Legislature Parliament was elected. It included 197 women and representatives from Nepal’s marginalized groups and diverse population. The CPA and the Interim Constitution mandated the CA to draft and adopt a constitution that eliminated the centralized, unitary state and introduce instead progressive state restructuring, inclusion and the empowerment of Nepal’s excluded communities. The constitution making process of 2008-12 failed to draft and adopt a new constitution but did produce significant achievements. There is today in Nepal, broad agreement that Nepal should be a federal, secular and inclusive democratic republic. There has been a widespread public debate on complex constitutional issues and the various thematic committees of the former CA produced impressive reports on the main constitutional issues. The issues where consensus proved difficult included the basis for the demarcation of provinces (the balance between identity and viability) in a federal Nepal; the design of the electoral system and whether Nepal should adopt a presidential system, continue with the Parliamentary executive model, or explore a semi-presidential compromise. The collapse of the Constituent Assembly in May 2012 created a crisis that was not anticipated by the framers of the Interim Constitution. The CA elected in 2008 was expected to continue in office until the adoption of a new constitution and there were therefore no provisions for a second CA election. After months of uncertainty a political consensus was reached by the main political parties in the country that an election for a new CA under the aegis of aspecial council of ministers chaired by the Chief Justice, was the way to resolve the constitutional crisis. Since there was no Legislature Parliament to amend the constitution, a provision that gave the President the power to issue orders to remove difficulties was used to give legal effect to the political consensus to conduct elections. Nepal went to the polls on 19 November 2013 to elect a new CA to resume the important task of constitution making. i This two volume publication seeks to describe and analyse the remarkable and ambitious participatory constitution making process in Nepal and its challenges both with respect to process and substance. It also seeks to critically examine the difficult issues that have prevented Nepal to date from reaching agreement on the substance of the new constitution. Authors were identified so as to capture the range of views and opinions on a variety of constitutional issues that have featured in the national debate on constitutional reform. We hope that the collection of essays will contribute to a more informed debate that will in turn, lead to a successful conclusion to the process. ii INTRODUCTION TO VOLUME ONE The first volume of the post-Comprehensive Peace Agreement (CPA) constitution- making process of Nepal gives an overview of the constitution making process of the first Constituent Assembly (2008-2012) and the key constitutional issues which dominated then and are to be resolved by the second Constituent Assembly in the drafting of Nepal’s new constitution including the protection of fundamental rights, the form of government and the issue of social inclusion, among other things. In Chapter 1, Krishna Khanal gives a brief comparative perspective of participatory constitution making and overview of Nepal’s journey towards participatory constitution making process. Then he examines the constitution making process during Nepal’s first Constituent Assembly (2008-2012) vis-à-vis the framework of participatory approach. In Chapter 2, Mohan Lal Acharya reviews the constitution-building process of the first Constituent Assembly and discusses the contribution it made to key contentious issues. He provides detailed information and analyses in chronological order on major events, including the Constituent Assembly’s development and obstacles. He also examines the challenges the Constituent Assembly faced during its four-year tenure and highlights the efforts made by political leaders to remove these obstacles. Finally, Acharya extracts lessons for the future including recommendations. In Chapter 3, Purna Man Shakya dwells on the critical analysis of the process of constitution making in Nepal. He argues that the six constitutions that were made in the past did not endure because they were created by a top-down process and the ruling elites had the main (or only) say in these constitutions. He differentiates the making of the new constitution by the Constituent Assembly, which is following a bottom-up approach in which the people are the author of the constitution. Through this inclusive Constituent Assembly, the people can participate in the participatory and deliberative constitution-making process. iii In Chapter 4, Yubaraj Sangroula discusses some key constitutionally significant cases before the Supreme Court of Nepal and the political implications of judicial interventions. He examines two house dissolution cases of 1990’s and points out the discrepancies of the Supreme Court in interpreting the constitution and its cost for the future of Nepal’s democracy. Then he discusses the cases the Supreme Court decided in the Interim Constitution’s several amendments to extend the tenure of the first Constituent Assembly (2008-2012), the discrepancies in interpreting the constitution and the failure of the Court to take the nuances and reality of post conflict constitution making into consideration. In Chapter 5, Bhimarjun Acharya discusses the constitutional protection of fundamental rights since the 1948 constitution and posits that Nepal has in the past protected people’s rights as expressed rights, rather than natural or inalienable rights. Acharya points out that a bill of rights is the ‘conscience’ of a constitution, as these rights can be enforced in a court of law and constitute a set of restrictions and limitations on government action. In the context of Nepal, the insertion of a bill of rights in the constitution would be the culmination of a long struggle by the people for rights and liberties. The bill of rights purported for inclusion in the new constitution includes a wide range of protections with a common theme and purpose: to define the scope of individual freedom in Nepal and to make the political system more democratic and pro-people. The list of new rights proposed in the draft, once adopted, may herald a new era in the struggle for rights and liberties. In Chapter 6, Basant Adhikari reflects on the discourse on the recognition of international human rights norm and standards in the new constitution. He highlights some of the theoretical aspects of constitutional recognition of human rights norms and standards in modern constitutional democracies and links this with the constitutional discourse in Nepal. Adhikari focuses on the discourse of former Constituent Assembly’s Committees on Fundamental Rights and Directive Principals and makes some critical observations on its proposals on the subject. In Chapter 7, Binda Magar, Luma Singh Bishwokarma and Indu Tuladhar analyse the proposed citizenship provisions by the first Constituent Assembly of Nepal, (2008-2012) with special emphasis on problematic provisions of Nepalese women’s right to convey citizenship independently to their children and children’s right to citizenship as provided for in the international human rights treaties to which Nepal is a party. The authors summarize the consequences of not guaranteeing this right in the new constitution. The authors also highlight the practices of different countries to granting citizenship to see the global trends of citizenship rights of women
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