Nepal: Parties Cut ‘Deal’ On New Constitution – Analysis

By Dr. S. Chandrasekahran

On the 15th of this month the political parties finally agreed on a basic structural model for the new constitution to be promulgated within the dead line of 28 May, leaving most of the contentious issues to a future Federal Constitution Commission to decide on the names, delineation of provinces and most importantly the boundaries.

The text of the agreement reads as follows:

A) Federal Structure:

1. All states in Nepal will embrace multi-ethnicity, entailing that every citizen will have equal political, economic, social and cultural rights regardless of their ethnic, religious or cultural backgrounds.

2. The central, the provincial and the local governments shall be responsible in upholding and defending the fundamental rights and the human rights of each citizen.

3. There shall be 11 federal provinces. The names for the provinces shall not be proposed for the time being.

4. Central Federal Commission shall be empanelled to address the issues concerning delineation, naming and regional distribution of the provinces.

5. The Legislative Parliament shall make the decision pertinent to the aforementioned point based on the recommendation made by the Central Federalism Commission.

6. Regarding provincial nomenclature, the decision taken by provincial assembly shall be held supreme.

B) System of Governance:

1. There shall be a mixed system of governance.

2. There shall be a directly elected President as mentioned in the law.

3. Prime Minister shall be elected by parliament. The parliament-elected Prime Minister shall constitute the cabinet of ministers. The cabinet and its members shall remain responsible towards the parliament.

C) Parliament Formation:

1. Parliament shall be formed through mixed-electoral system.

2. The House of Representatives shall have 171 directly and 140 proportionally elected members.

3. The National Assembly shall have five representatives elected from each province. Based on the recommendation of the cabinet of ministers, the President shall nominate 10 distinguished individuals from different fields as assembly members.

4. The central constituency shall be divided into two electorates while conducting election for the Provincial Assembly members.

5. Local government shall be formed as per the law.

D) Court:

1. Remaining tenure of a Justice shall not affect his/her eligibility from becoming Chief Justice

2. Judicial Council shall appoint the justices.

3. The Chief Justice shall preside over the Judicial Council that shall have two senior-most justices, Minister of Law and one representative from the Bar Association as councillors.

4. The incumbent justices sworn in under the interim constitution shall automatically retain their appointment with the promulgation of a new constitution. They shall, however, be required to re-take the oath of office under the new constitution.

E) Constitutional Court

1. Constitutional Court shall be constituted under the Chief Justice.

2. The Constitutional Court shall consist of the Chief Justice, two senior-most Supreme Court justices and two legal experts, with the eligibility on a par with Supreme Court justice, appointed by the President based on the recommendation of the cabinet of ministers.

3. The Constitutional Court shall adjudicate the disputes between the provinces; province and the centre; and between province and local government. The Constitutional Court shall have a five-year term.

F) Pertinent to the demand for incorporating the nine districts of Seti and Mahakali zones under one single province, public opinions shall be collected in the region as proposed by the senior leaders of the three political parties. By public opinion collection, it is understood that a proper referendum could also be conducted to decide on the matter.

Some Observations:

1. It is a “compromise” constitution. The Maoists have had their way in having eleven provinces as also a directly elected president who will not be answerable to the parliament. The democratic groups have given in with the hope that there would be “checks and balances” between the executive president and the elected prime minister, but it looks that there would be more problems ahead when the president and the prime minister may not be from the same party or may not have the same ideology.

2. The present arrangement of the provinces may not be acceptable both to the Madhesis and the Janajathis. The Far west is still burning and the Madhesi groups opposed to Gacchadhar may not accept the arrangement so easily. And then there is the Tharu factor.

3. There is no doubt that it is better to have a broad outline of the constitution with many pitfalls rather than have none at all thus creating more uncertainty and chaos after the May 28 deadline. The pity is that, however one may try to placate the individual ethnic groups, division into eleven provinces as demanded by the Maoists is going to create an ugly situation where most if not all provinces will have sizeable unhappy minorities. The cycle of unrest and bandhs which have been the hall mark in post interim constitution period may continue in some form or other. By leaving the thorny issues to a federal commission, the political parties have only postponed the evil.

4. One positive point has been the appointment of a judicial council which would over see the appointment of judges too in future. The formation of a constitution commission is another welcome development and that would restrict any single party to take vital decisions unilaterally on the future of the state!

Only a broad outline of the nature of the constitution has been announced. The devil may be in the detail. Yet it is a positive step from the “near paralysis” that was seen in the last many months.