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DEMOCRATIC CONSTITUTION MAKING Experiences from Nepal, Kenya, South Africa and Sri Lanka

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DEMOCRATIC CONSTITUTION MAKING Experiences from Nepal, Kenya, South Africa and Sri Lanka DEMOCRATIC CONSTITUTION MAKING Experiences from Nepal, Kenya, South Africa and Sri Lanka Editors Hari P. Bhattarai Jhalak Subedi Nepal South Asia Center (NESAC) Published by: Nepal South Asia Center (NESAC), Kathmandu First Published 2007 Th is book is published with the support of International IDEA. Copyright: NESAC and authors Design/Layout: FinePrint, 4255500 Printed At: FinePrint ISBN: 978-99933-838-4-0 Contents Preface and Acknowledgements I Abbreviations II Introduction: Inclusive and Participatory Constitution Making 1 - Hari P. Bhattarai Section One: Nepalese Experiences and Issues 1. Constitution as Sources of Exclusion: An Overview of the 1990 Constitution 11 - Mahendra Lawoti 2. Making an Inclusive Constitution in a Plural State: Issues of Identity and Representation 51 - Hari P. Bhattarai 3. February First and Nepali Discourse on New Constitution Making 73 - Jhalak Subedi 4. Rhetoric and Realities of Interim Constitution 2007 83 - Bhim Prasad Bhurtel Section Two: Experiences from South Africa, Kenya and Sri Lanka 5. Negotiating a Sustainable Political Settlement: Lessons from the South African Transition 105 - Nicholas Haysom 6. People Take Lead: Participatory Process of Constitution Making in Kenya 119 - Yash Ghai 7. Confl ict and Constitutional Process: Some Sri Lankan Experiences 133 - Rohan Edrisinha Conclusion: Emerging Issues in Constitution Making in Nepal 139 - Jhalak Subedi 150 Democratic Constitution Making adsfsdaff dsasda Democratic Constitution Making I Preface and Acknowledgement Nepal South Asia Center, Collective Campaign for Peace, Nepal Federation of Indigenous Nationalities, Martin Chautari and International IDEA (Institute for Democracy and Electoral Assistance) organized a two-day long seminar and a three-hour public lecture entitled “Towards Inclusive and Participatory Constitution Making” on 3-5 August, 2004. Th e main objectives of the dialogues were: • Sharing of national and international experiences of constitution making processes; and • Drawing lessons from those experiences for future constitutional reform processes in Nepal. Th is book is an outcome of that dialogue. Some of the papers in this collection were presented at the seminar and public lecture. After the popular April uprising, the political situation of the country changed drastically. Th e armed confl ict was peacefully resolved. A new interim constitution was promulgated and all political parties agreed to elect a constituent assembly to draft a new constitution. All political actors have accepted the fundamental question of restructuring the state. Still madhesi and janajati communities are not satisfi ed with the interim constitution and they are demanding that it be amended to make the CA more inclusive. Th ese events necessitated the inclusion of three new papers (chapters 3, 4 and 5), which analyze these new political and constitutional developments. Th e book, we hope, will help us understand the issues, constraints, challenges and opportunities of democratic constitution making. We would like to thank all the contributors as well as the participants of the workshop and public lecture for sharing their views and ideas. We would like to thank Mr. Anil Bhattarai, the then Director of NESAC, for initiating the dialogue, compiling the papers and making initial preparation for the publication of this book. We would like to thank our NESAC colleagues Dr. Devendra Raj Panday and Prof. Birendra P. Mishra and Ms Leena Rikkila from International IDEA, who time and again encouraged us to publish the book. We thank Mr. Ajit Baral for his editorial support. Mr. Netra Acharya, Ms Sunita Roka and Ms Shanta Ghimire of NESAC are duly acknowledged for their respective supports. II Democratic Constitution Making Abbreviations CA Constituent Assembly CBS Central Bureau of Statistics CPN Communist Party of Nepal CPN (UML) Communist Party of Nepal Unifi ed Marxist-Leninist CIAA Commission for Investigation of Abuse of Authority IDEA International Institute fi r Democracy and Electoral Assistance MNO Mongol National Organization; NESAC Nepal South Asia Center NGO Nongovernmental Organization NC Nepali Congress Party NSP Nepal Sadvawana Party NDP Nepal Democratic Party NEFIN Nepal Federation of Indigenous Nationalities NPWP Nepal Peasants and Workers Party RJP Rastriya Janajati Party SPA Seven Party Alliance UNDP United Nation Development Program Introduction Inclusive and Participatoy Constitution Making Hari P. Bhattarai A constitution is the supreme legal document on which all the laws, acts, delegated legislations and regulations of a country are based. Th erefore, constitution making is an important part of the process of ensuring justice, peace, security and good-governance. Constitution making is also an exercise in democratic empowerment and can contribute signifi cantly to nation-building. In order to ensure and incorporate the marginal voices, majority articulations and minority aspirations, a large number of key stakeholders at all levels must be involved in the making of a constitution. Th ere should also be a reconciliation between mainstream and confl icting forces, and consensus among all the political forces on the constitution making process. Without this the constitution thus formed will have little legitimacy. Past Experiences Th e history of constitutionalism in Nepal chronicles a failure. In the last sixty years, fi ve constitutions have been formulated. Th e fi rst written constitution was drafted and promulgated in 1948 by autocratic Rana rulers as a response to growing popular demand for democratic rule in the country. Th e constitution envisioned a council of ministers holding all executive power but controlled by the prime minister and a weak bicameral legislature exercising limited jurisdiction. It made scant reference to the king and did not cite Hindu symbols as sources of the state’s authority. Th is constitution did not identify any marginalized or disadvantaged groups as needing special provisions. Th is constitution was drafted by a committee composed of three constitutional experts each from India and Nepal and promulgated by the Ranas without any public consultations. Th e Interim Legislation of 1951 came into eff ect from mid-April 1951 and was promulgated by the then King Tribhuvan. Th is constitution ensured some fundamental rights such as the equality of wages between men and women, the rights to justice and humanitarian provisions like education 2 Democratic Constitution Making and economic upliftment of the weaker sections of society, equal rights to citizenship irrespective of religion, caste, ethnicity, birth-place. But no concrete measures were identifi ed to address the needs of the marginalized groups. As in the previous constitution, people’s participation was not sought while drafting the constitution. Th is constitution was amended six times. Th e interim legislation was to be replaced by the constitution proposed by an elected constituent assembly (Joshi and Rose, 1966). But the constituent assembly was never formed. In March 1957, King Mahendra formed a six-member constitution drafting commission. Th e draft was then promulgated in February 1958. Th ough this constitution made provisions for equality of citizenship irrespective of religion, caste, ethnicity and gender, and other basic fundamental rights, it was not drafted through the popular participation of the common people and was an imposed document (Brown, 1996). Sovereignty was vested in the king and the king had the power to impose an emergency if he thought the situation demanded it. Th e communists criticized this draft as being anti-democratic and demanded that the power to impose a state of emergency be wrested from the king. Th is constitution lasted until King Mahendra imposed an emergency and dissolved the popularly elected government of BP Koirala through a military coup in December 1960. A constitution drafting commission was formed by the king in April 1962. Th e draft prepared by the commission was promulgated in December 1962. Th is constitution was drafted to ensure the autocratic regime of the king. No wonder all the powers of the state, including sovereignty, lay with the monarchy. Th e constitution was amended three times, and a few public consultations were done during the amendments, but these processes were token exercises (Dahal, 2001). So, despite the amendments, it turned out to be even more regressive than the previous ones. Th e 1990 Constitution was drafted after the popular movement overthrew the autocratic Panchayat regime. A constitution drafting commission was formed by King Birendra on the recommendation of the then interim cabinet. Th e majority of the members of the commission were selected by the political parties which led the movement for the restoration of democracy. As compared to the previous constitutions, this one was drafted after wider consultations with the people. Th e commission members went to all of the 75 district headquarters of the country seeking submissions on the contents of the forthcoming constitution–both Introduction 3 written and oral–from ordinary citizens. Public discussions about the new constitution were held, even if mainly in the headquarters and among the elites. People were publicly asked to submit their suggestions regarding the new constitution in the boxes placed in various public places. Dalit groups submitted their demands for, among other, the establishment of a secular state, reservation, participation of dalits in the preparation of the law. But their demands were
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