By Dr. Pramod Jaiswal*
The Constituent Assembly members eventually tabled the first draft of the most awaited Constitution of Nepal on June 30, prompting protests from Madheshi parties and royalist groups. The draft was possible after the four major political parties of Nepal, namely Nepali Congress (NC), Communist Party of Nepal- Unified Marxist Leninist (CPN-UML), Unified Communist Party of Nepal (Maoists) and Madhesi Janadhikar Forum (Loktantrik), inked the 16-point agreement on June 8, 2015. Right now, it’s just a draft. Several changes may take place when a full-fledged constitution is promulgated.
Crafting a new Constitution is proving to be a Herculean task in Nepal. The Constituent Assembly, which was formed after the April 2008 election, had to promulgate the new constitution by May 28, 2010, but the Constituent Assembly deferred the deadline by a year as the political parties had disagreement on many issues of the constitution. Again, after May 2011, the Constituent Assembly extended the tenure by few months after it failed to deliver the constitution. In May 2011, the Supreme Court of Nepal gave verdict against the previous extensions and opposed further extensions. In May 2012, the first Constituent Assembly got dissolved in a dramatic way without delivering its promises. Consequently, the second Constituent Assembly took place in November 2013 under the leadership of the Chief Justice, but the newly elected lawmakers, once again, failed to deliver the constitution on their self-imposed deadline of one year.
The major political parties could come up with the draft of the constitution this time as the 16-point agreement deferred some of the most contentious issues to be decided later. Federalism had remained the most contentious issue in promulgating the constitution. Hence, in this agreement the major political parties agreed to federate the country into eight provinces and promulgate a constitution, leaving the issue of names to be decided later by two-third majority of the state assembly of respective provinces. Likewise, they agreed to form a Federal Commission, which will have six months to delineate the boundaries of the federal provinces.
The Supreme Court of Nepal has, however, termed the agreement unconstitutional and issued a stay order against it, citing an interim charter that calls for lawmakers to restructure the state comprehensively before approving a new constitution and dissolving the constituent assembly. Therefore, the opposition parties tore up copies of the draft constitution citing that it violated a recent court order.
The ire against the draft constitution is not only from the Madhesi parties and royalists group but also from the lawmakers of ruling Nepali Congress, who stood up to say that the draft was unconstitutional and not acceptable. In fact, the Madeshis, Janajatis and women lawmakers across all the political parties have long pushed for new provinces to be created along lines that could favour historically marginalised communities. However, others contend that it would be divisive and a threat to national unity. While the Madhesis and Janajatis want immediate naming and demarcation of future federal units, the royalist’s are demanding referendum on secularism, federalism, monarchy and republicanism. Due to intense pressure from the Madheshi, Janajatis and women lawmakers from his own party, Prachanda, chairman of the Unified Communist Party of Nepal (Maoists), approached NC and CPN-UML to further negotiate on crucial issues of federalism that were left unresolved in the 16-point agreement.
The civil right activists have opposed the citizenship provisions in the draft constitution, terming them discriminatory. Any citizen of 16 years of age can get citizenship by descent if both their parents hold Nepali citizenship. But this provision deprives women, who have children from foreign fathers, from passing citizenship by descent to their children. Similarly, Article 282 of the draft constitution states that only citizens by descent can hold the top posts such as of the president, vice-president, prime minister, chief justice, Speaker, chair of the Upper House, chief minister, speaker of the pradesh sabha and chief of the security agencies.
While the oppositions burnt the draft as soon as it was tabled, the ruling alliance claimed it as a major achievement and declared that the draft preserves the gains of the 12-point agreement of 2005, Comprehensive Peace Agreement of 2006 and institutionalizes the achievement of the Madhesh movement by guaranteeing federalism. The four major achievements of these movements — republican order, secular state, federalism, and inclusion — are enshrined in the draft constitution. It respects the principles of inclusion of subsequent Janajati and Dalit uprisings and preserves one-third representation of women. It proposes improved parliamentary democracy, in which the ceremonial and emergency powers are vested in the president, who is elected by the federal and state parliaments. The prime minister, elected by the federal parliament, will exercise executive powers.
A mixed electoral system — 60 percent directly elected and 40 percent elected on the basis of proportional representation — has been adopted for federal as well as state parliaments. This means, out of the 275 members of the federal parliament, 165 will be elected through single constituency first-past-the-post system, and remaining 110 through the proportionate representation. Similar method would apply in state parliament elections, which will have maximum 45 members. The Upper House of the federal parliament will also have 45 members (five each from eight state assemblies, and remaining five nominated by the president).
More political chaos is going to follow by keeping the opposition and disgruntled forces out of the game. It will neither serve the basic purpose of constitution making through the Constituent Assembly, which is to empower historically marginalised communities. The major political parties, by now, are also aware that they cannot impose the draft. They must leave no stone unturned to regain the confidence of the dissenting groups. India, which has major stakes in Nepal’s peace process and constitution making, should facilitate the process so that Nepal can have a durable constitution and political stability may prevail.
*Dr. Pramod Jaiswal is an expert on South Asia Affairs. He can be reached at [email protected]