Constitution Of Nepal 2072: Liladhar Upadhyaya
Finally, Nepal has succeeded to draft and promulgate the new constitution through the Constituent Assembly (CA). Writing constitution through the CA was a challenging task. But, the CA accomplished the historic task after a constant effort lasting for eight years.
The dream of promulgating the new constitution through the CA has now been materialized with the promulgation of the new constitution by the President Dr. Ram Baran Yadav on September 20, 2015.
The President issued the new constitution a day after it was authenticated by CA chair Subas Chandra Nembang and endorsed by overwhelming majority of more than two-thirds members of the CA. The Bill of the new constitution was also accepted with more than a two-third majority on September 16, 2015. Altogether 507 CA members voted for the Bill while 25 lawmakers of the Rastriya Prajatantra Party-Nepal voted against it. Besides CA chairman Nembang, a total of 532 CA members participated in the voting process. Only 57 out of total 598 sitting members (the CA had strength of 601 members) boycotted the voting process. Likewise, 85 per cent out of 89 per cent members present in the CA supported the adaptation of the new constitution.
Lessons from the previous CA
The first-ever Constituent Assembly (CA) which was elected in 2008 to draft the new constitution could not produce the constitution because of the differences between the political parties on some thorny issues like modalities of federalism and form of governance. The political parties blamed each other to save their faces regarding the disputes erupted between them on restructuring of the state and subsequent dissolution of the hardly earned or established historic 601-member Constituent Assembly in 2012. This time the political parties succeeded to rectify the past mistakes.
The Nepalese people had participated in the People's Movement in 2006 trusting upon the political parties that they would build new Nepal by drafting and promulgating a new inclusive constitution through the process of Constituent Assembly which is considered a modern model of drafting constitution. It was a participatory approach against other traditional approaches. In traditional approaches of constitution making process, the superior body imposes the constitution on the people. The successful experiment of this model was done in South Africa. With the promulgation of the new constitution, Nepal has also become a country to have a CA-drafted constitution.
No doubt, the first Constituent Assembly had succeeded to set agendas for new Nepal, they are either in the form of restructuring of the state or in the name of bringing the backward and marginalized people into the mainstream political process. No political being can discard the meaningful achievements made by the dissolved Constituent Assembly even though some critics said that it only opened the Pandora's Box abruptly without leading them to a logical conclusion. Declaring nation as federal democratic republic, declaring the nation as secular state, integration of ex-Maoist combatants into Nepal Army, representation of women, dalits, indigenous nationalities and backward people in the CA are considered some of the major achievements of the first CA. Moreover, it had brought the rebellious force, the then CPN-Maoist, into the periphery of ballot box after it joined the peace process by signing the Comprehensive Peace Agreement (CPA) in 2006.
As per the mandate of the people’s movement 2006, the CA succeeded to attain the following objectives: to establish lasting peace; to build an inclusive state system by restructuring the state; to establish democratic system by ending autocratic state power and so on.
Constitution in 23 months
The nation got the new CA through an election held on November 19, 2013. Holding the second election to the CA was another unique experiment in the process of making the new constitution around the world.
Over 61.7 and 63.29 per cent people had participated in the 2008 CA election under the first-past-the-post (FPTP) and proportional electoral (PR) system respectively. In comparison to that, the voters turned out stood at 78.34 and 79.82 per cent under FPTP and PR electoral system respectively in the 2013 CA election, with high turnout of women and young people during both the CA elections.
The second Constituent Assembly has started its works with the preparation of working time table, CA Rules 2014. Subsequently, unlike the previous CA, which had constituted 11 thematic committees including Constitutional Committee to draft the new constitution, the present CA has constituted only five thematic committees and three regular committees. These committees remained active in drafting the new constitution within the stipulated time.
Interestingly, an independent government led by Chief Justice Khil Raj Regmi was formed to hold the election to the second CA as the sharply divided political parties failed to form an election government under any particular party. The political parties had agreed to form the Regmi-led government to ease the fresh CA election process by creating conducive environment within the stipulated time. The Regmi-led government successfully completed the task of holding the CA election in 2013. The journey of the second CA ended successfully with the promulgation of the new constitution on September 20, 2015. Now it has turned into Legislature Parliament.
Major challenges settled by the CA
The political parties represented in the Constituent Assembly deserve kudos for settling numerous contentious issues ranging from citizenship to model of federalism. They forged an agreement on federalism, forms of governance, foreign policy, agenda of inclusion and participation and so on prior to adopting the new constitution. The 16-point deal that the political parties signed immediately after the April 25 devastating earthquake became milestone to settle the thorny issues of the new constitution. The historic deal had reached on June 8 between the NC, UML, UCPN-M and Madhesi Janadhikar Forum (D). The political parties had agreed to fix the eight provinces without demarking the boundaries. Formation of the Truth and Reconciliation Commission and Formation of the Commission on Disappeared Persons, a major component of ongoing peace process, was also completed during the tenure of the second CA. They were needed to address the atrocities of the decade long insurgency, from both sides—the government and the insurgents-- and to provide justice to the victims. Similarly, future model of the federal set up of the nation was one of the major challenges of the constitution making process in Nepal although the nation was principally declared as federal democratic republic. Political parties were claiming that the 'Constituent Assembly 2008' was dissolved due to the lack of agreement on the modalities of the state restructuring process. The political parties became able to divide the nation into seven provinces, but some political forces are yet come to agreement on it. Even the MJF (D) quitted the constitution drafting process at the eleventh hour owing to its differences with the major three parties
Major Achievements of the New Constitution
- Institutionalisation of Federal Democratic Republic: With the promulgation of the new constitution, the federal democratic republican set up of the nation has been institutionalised. It is a big blow to the regressive forces which wanted to reinstate the monarchy in the name of religion and so on. Introduction of federal structure is a new experiment in Nepal. The nation has got seven provinces against the unitary state.
- End of prolonged transition: The promulgation of the new constitution has ended prolonged transition that the nation had been witnessing after the Royal coup and its counter product that is 12-point agreement signed between the seven-party alliance and the then insurgent party CPN-Maoist on November 22, 2005. The people's movement held on 2006 in April had brought several changes including the abolition of the 240-year long rule of the Shah dynasty.
- Sovereignty vested on the people: The new constitution has made the proclamation that the sovereignty is vested on the people. Unlike the previous constitution, the seventh constitution of the nation has entitled the state power and ruling power to the people. It is a major achievement of the new constitution.
- Improved Parliamentary system:
This constitution has managed the provision of ceremonial president and executive prime minister by defining their rights in the constitution. The constitution has ensured executive rights on the elected prime minister.
- Provision of Advanced Constitutional Commissions: The new constitution has provisioned several commissions including National Inclusive Commission, National Dalit Commission, National Human Rights Commission, Language Commission, National Natural Resource and Finance Commission and so on.
- Economic Social Transformation:
With the promulgation of the new constitution, the nation has set the new way for economic and social transformation which the nation and its people were waiting for long. It has ended the prolonged political transition and marked the era of peace, stability and economic prosperity.
Likewise, the political parties managed to settle several issues ranging from citizenship issue to electoral system. The political parties, the key actors of the democratic system, proceeded every step cautiously to ensure the promulgation of the new constitution. This time, people witnessed longstop date on behalf of political parties to guarantee the new constitution through CA. It is a historic achievement. The nation is saved from being a laboratory to experiment the constitution making as the political parties and their leadership showed maturity. Rest of the issues could be addressed through the amendment process. There are several challenges for the effective implementation of the new constitution.
Obviously, life of a successful constitution depends on its effective implementation. The political parties should remain united for the effective implementation of the new constitution as they were during its drafting and promulgation. They should act promptly resolve the crises surfaced in southern plain after the successful promulgation of the democratic constitution. The leadership should bring the disgruntled forces to the negotiation table. A constitution is not a scripture written in a stone. It is an amendable document. Thus, it is wise to hold dialogue with the agitating forces at the earliest possible and the agitating forces should also shun violent means of protest.
Kashiraj Dahal is a noted constitution expert. Currently Chairman of the Administrative Court, Dahal has been involved in framing various laws related...