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Mainstream, Vol XLVIII, No 20, May 8, 2010

Impending Constitutional Crisis in Nepal

Monday 10 May 2010, by Aparijita Kashyap, Satish Kumar

The stage seems to be ready for a constitutional crisis in Nepal. The deadline for enacting the new Constitution is on May 28, 2010. The preparation for making the Constitution seems to be half done. Prachanda is strongly against the partial enactment of the Constitution. This will lead to the derailment of the constitutional process. It is a well-known fact that the people of Nepal have been tricked numerous times in the name of the Constitution. But earlier attempts were being made by monarchs. This time all the political parties across the nation have joined hands together to draft a Constitution which will address the problems of the people. There has been a problem in meeting the deadline. The politically divided opinions have created confusion on the major subjects of the Constitution. There is stiff tussle between the Maoists and Nepali Congress on many subjects: such as state restructuring, forms of governance, modality of federalism, constitutional bodies, state organs, and fundamental rights as well as others. As the deadline draws nearer, some argue it’s technically impossible to meet the deadline. But the CA will now have to skip certain constitu-tionally mandated steps of the writing process. Approximately there are 17 steps of which six steps have been completed till today. With just a few weeks left, the CA took a shortcut by pushing the deadline for the submission of the first draft of the Constitution to April 16, while retaining May 28 as the final deadline.

The earlier Constitutions of Nepal failed to establish rapport with the people. The beginning of the Interim Constitution of 1951 established the Supreme Court and independent Public Service Commission. Within two years, the then King Tribhuvan started violating the constitutional provisions. The impartial election of a Constituent Assembly was blocked. The King denied holding of the CA as well as parliamentary elections. The next process of Constitution-making was started by the son of King Tribhuvan, King Mahendra. King Mahendra in 1962 proclaimed partyless democracy, that is, what was known as the Panchayat system. The Panchayat system functioned for almost 30 years. The first Jana Andolan was started by an armed movement by the Communist groups and Nepali Congress jointly. With the success of Jana Andolan 1, Nepal turned into a multi-party democracy by the proclamation of the Constitution of the Kingdom of Nepal in 1990. According to this Constitution, the people of Nepal were identified as the source of political legitimacy and they were guaranteed basic rights.

The first decade under the new Constitution was marked by frequent elections and unstable governments. Experiments of all forms of government were being made. But the democratic system failed to make inroads into Nepal’s politics. The politics of Nepal was trapped in a vicious circle with political bickerings within the political parties. On the one hand extreme Maoist forces tried to defame the parliamentary system, and on the other hand the traditional forces of the Palace staged a coup in February 2005. This polarised the political system of Nepal completely. And this led to the formation of a seven- party alliances against the King’s autocratic regime. With the formation of the SPA, the second Jana Andolan was started. With the success of the second Jana Andolan many radical steps were initiated. It ended the monarchical rule and restored the people’s power and parliament. Later on, the interim parliament and interim government were formed jointly by the SPA and Maoists. Both parties agreed to introduce a “peace accord”. This accord led to the election of the CA. The Constitutional Assembly election was held in April 2008. With the election of the CA, it has been vested with double responsibility. One is to make the Constitution and the other is to help the CA function as the parliament.

It must be stated that the Constituent Assembly has been tasked with writing a new Constitution and fundamentally reshaping the government as part of the peace process. A body of 601 members, the most representative assembly that Nepal has ever had, has been formed. It represents most of the country’s political forces, from the revolutionary Communist Party of Nepal (Maoist) to the regionalist Madhesi Janadhikar Forum as well as a variety of fringe parties. There is considerable hope among the people of Nepal that this time the Constitution will reshape the economic and social fabric of the country.

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It is the Constitutional Committee that has the responsibility for formulating the final draft. The report must consist of thematic and subsequent recommendations. Thereafter, a proper debate at different levels has to follow. The fundamental steps of the process are: discussing the first draft in a full session of the CA, taking the draft Constitution to the public, interacting with experts on the draft, distributing it to the CA members to study, and discussing each article and passing it by two- thirds in the CA. Yet the job seems ominously difficult, given that the committees have resolved little on matters where there are major differences, particularly between the Maoists and the rest. Instead, the committees have helped to further polarise the political parties.

The major political division is on the subject of federalism, integration of the Nepalese Army and linguistic and ethnic division of the state. The federal arrangement is not asymmetrical; all provincial units are treated by the same standards as far as Centre-State relations are concerned. Another issue relates to the Nepalese Army. The People’s Liberation Army is controlled by the country’s Maoist forces. For a decade, the two sides fought a savage guerrilla war. Now the peace plan, stemming from the 2006 accord, calls for blending them together. But the problem is: how to do it?

There are also problems with the exhaustive list of Fundamental Rights and Directive Principles of State Policy released by the Committee on Fundamental Rights and Directive Principles. The report of the Committee on the Rights of Minority and Marginalised Communities has also created controversies by putting forth ambiguous provisions as to the compensation to be paid by the state to certain communities for past abuses against them. In the same vein, the Committee on Determination of Structure of Constitutional Bodies has proposed 11 independent commissions to deal with issues specific to Madhesis, Dalits, indigenous peoples and others, substantially limiting the role of the elected government in the affairs of the state. There are other challenges. It is questionable how a country can preserve its national interest without a clear concept on how to deal with the internal security challenges.

The major challenge before the political parties is to fulfil the commitment of 2006 under the historic peace accord. It was expected that the political parties will draft a new Constitution and bring forth qualitative and social transformation under the Constitution. Now the only hope left for meeting the deadline is to agree on fundamental issues. This will facilitate to start the process of drafting the new Constitution. This does not mean an incomplete Constitution. The process of strengthening the Constitution will continue in future as well. But this idea has to be accepted by all political parties. It does seem to be working in Nepal. However, the dogmatic and hardline approach of the Maoist leaders will push Nepal into a blind alley.

Dr Satish Kumar is a Senior Assistant Professor, MMH College, Meerut University and Dr Aparijita Kashyap is on the faculty of IP University, Delhi.

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