Support to Participatory Constitution Building in Nepal (SPCBN)

There is no specific committee to work on such sectoral issues however the TOR of the committee on State Restructuring and Distribution of State Power Provides list of competencies in which the committee has proposed detail list of competencies for each of the tier of the government including the concurrent list. Besides that, fundamental rights and directive principle committee has also proposed health rights including reproductive health and right to education as fundamental rights. See annexes of State Restructuring committee Report and Fundamental Rights Committee Report for the further detail, See http://spcbn.org.np/new/index.php?action=resources

The election of the Constituent Assembly (CA) in Nepal was held on April 10, 2008.Though the agenda of constituent assembly has its root back in 1950's revolution surfacing again in 1990 but apparently after 2001 the issue was able to draw the attention within Nepal's political discourse when then CPN Maoist following a second round of talks, made the CA election as bottom line for the negotiation. The agreement for the idea of CA election between the Maoists and the Seven Party Alliance (SPA) was held on April 2005. After signing the twelve point agreement in November 2005 by both the parties the setting for CA election became a reality. In April 2006, following the success of the democratic movement and the resumption of power by the leading political parties, the reinstated House of Representatives formally decided to hold the election of the Constituent Assembly at its first meeting. With regards to the election of CA please see http://www.can.gov.np/en, for the committees; please see http://www.can.gov.np/en/committees/index and its work and organization structure, see, http://www.can.gov.np/en/pages/view/ca-secretariat.

With regard to the progress of CA in constitution making, on 14th March 2012, the Constituent Assembly calendar was amended to extend the time to work on the disputed issues of the new constitution for another ten days. The Legislature-Parliament, Business Advisory committee, which is responsible for making such amendments of CA calendar, made the decision. This is the third time an extension has been made. Earlier, 20 days had been assigned to build consensus on the contentious issues amongst the political parties. Therefore, the Constitutional Committee has time until 24th March to reach consensus on the remaining contentious issues. http://www.ccd.org.np/new/resources/CA_Schedule_ENG.pdf. The State Restructuring Commission on Tuesday, 31st January 2012 submitted two separate reports to the government. The Commission was given originally two-month time which was extended by a week on January 22 and there were 9 commissioners. For details visit http://www.ccd.org.np/new/index.php?cipid=11
 

The Committee on Restructuring of the State and Distribution of State Power submitted its report on 2066/10/07 (Jan. 21, 2010). It was the latest submission out of the 11committee reports. Details dates of other  submissions and approvals are given below:

This is purely a political question rather than a constitutional one. Nepal is in transition and is simultaneously engaged in constitution building and concluding the peace process. We can assume that a new Constitution will be the final product of the peace process. Timely completion of constitution writing was affected by factors such as the delayed peace process, power struggle among political parties and some of the contentious issues that need to be resolved through consensus. The debate on the extension of the term of the CA could be seen in the light of the practicality of the original time frame given for the task and the constitutional provision regarding the amendment to the Interim Constitution, 2007 and interpretation held by the Supreme Court of Nepal

Thematic Committees (10) and Constitutional Committee of CA have already submitted the concept papers and preliminary draft of the constitution under their respective mandates. All of these documents are available in CA Official website http://www.can.gov.np/en/dncps/index. These documents also can be downloaded from our web link http://www.ccd.org.np/new/index.php?action=resources.

After submission of the concept papers and preliminary drafts by the CA Thematic committees, a Committee to study preliminary draft and concept paper has been constituted which has identified a total of 210 contentious issues and the committee has suggested resolving such disputes through constitutional negotiation. Different mechanism and structure were set up to speed up the negotiation at the political level. Dispute settlement committee under the constitutional committee is working hard to sort out the contentious issues. The constitution making is regularly updated in this link: http://www.ccd.org.np/new/index.php?cipid=11. Similarly, Official webpage of CA secretariat also regularly posts key documents including the activities of the CA in its publication links: http://www.can.gov.np/np/publications/index.  Please see these links for detail.
 

The High Level Task Force reduced the issues from 210 identified by Report Study and Analysis Committee to 83. Later, the Sub-Committee (of the Constitutional Committee) has resolved the remaining contentious issues to 22 only. The key issues involved in the ongoing debates include the forms of governance, the electoral system, name, number and the boundaries of federal provinces, power and structure of local bodies, political preferential rights, power and jurisdiction of Supreme Court, Constitutional court, enactment of law with retrospective effect to persecute crime against humanity, war crime, ceiling in land and property, right to self determination and prime right over natural resources, amendment provision etc.

Civil liberties are rights and freedoms that every individual enjoys in a democratic state. These rights and freedoms establish relationship of an individual with the state. The rights to life, fundamental freedoms, security, right to a fair trial, the right to privacy, freedom of conscience etc are some of the examples of civil liberties. One of the important aspects of the modern democratic constitution is the strong guarantee of these civil liberties and fundamental freedoms.. In many democratic countries, Constitution safeguards civil liberties as fundamental right or bill of rights with strong remedial mechanism. In the constitutional history of Nepal, all the past constitutions have guaranteed some degree of fundamental rights; however, there were severe (not reasonable) restrictive clauses which were misused time and again.

There were only two Clauses on fundamental right in 2004 BS Constitution, which were gradually extended by 13 clauses in 2047 BS constitution; 21 clauses in Interim Constitution 2063 BS and 31 clauses in proposed draft of the new constitution. It shows that the provision of civil liberties and fundamental freedom in Nepal has gradually been developed as it has recognized several international human rights instruments as well. In the constitutional regime of Nepal, fundamental rights are extended to cover not only civil and political rights, but also economic, social and cultural rights. The Supreme Court of Nepal has also played a crucial role in expanding and integrating right to life and freedom with other economic and social rights. In several cases, Supreme Court has made verdicts to expand the right to life to cover right to clean environment, right to food, water, health etc.

There are 10 thematic committees, three procedural committees and a constitution committee in the Constituent Assembly to draft a new Constitution of Nepal. The name and chairperson of the committees are as follows:

It is argued that the proposed provisions on citizenship by the CA Committee on Fundamental Rights and Directive Principles and later reviewed by the high-level Task Force (a political mechanism) are more strict than the provisions of the Interim Constitution of Nepal, 2007. Similarly, it has been criticized that the proposed provisions are not in line with international human rights instruments such as CEDAW, CERD, ICCPR, and CRC to which the Government of Nepal is a party.  

There are major concerns evolve around two clauses of the new provision: I) Citizenship by descent will be granted only if both the mother and father are Nepali citizens and II) requirement for marital naturalization. The requirement of father and mother to be Nepali citizen may also deny citizenship to children born to a Nepali parent (married to a foreign national) who is unable to obtain his/her own citizenship. It may increase the statelessness. 

The CA Committee proposed the ground of marital naturalized citizenship standing on principle of equality and proposed requirement of 15 years residence in Nepal for both man and women married to Nepali citizen. The high-level Task Force, however, has made a proposal to grant citizenship to the spouse of a Nepali man immediately after she initiates the process of renouncing her foreign citizenship. Foreign men married to Nepali women, however, may apply for the naturalized citizenship of Nepal only after 15 years of residence in the country and granting citizenship will entirely depend on the Government's discretion. There are also concerns that the proposed provision is against principle of equality. 

Many differing views have been registered on the citizenship issue. One of the most discussed proposals is to replace the words “mother and father” with the words “mother or father. Such serious issues may be resolved if the constitutional provisions are drafted in line with the international instruments which Nepal is a party to and provide equal right to mothers and fathers to pass down citizenship to their children.
 

The major gender related issues in the Constituent Assembly (of Nepal) include equality and non-discrimination in ancestral property, economic opportunities, punishing and ending all forms of exploitative cultural practices,   participation and proportional representation in each level of state structures and other sectors; economic empowerment, equal opportunities, and affirmative action - regardless of the difference in gender, caste, region and/or religion.

The CA Thematic Committee reports have tried to address all these above mentioned issues.  The reports prohibit all kinds of discriminations on the grounds of sex, gender, pregnancy, marital status and physical condition. Likewise, the reports try to ensure equality in wages, ancestral property and equal right to descent. It also prohibits polygamy and polyandry, recognizes the right to divorce,   equal rights of husband and wife on family-related matters, as well as equal rights and responsibilities in raising and rearing children.

While offering employment, the State shall provide priority to single women and it shall have the social responsibility of protecting women’s reproductive right. Any kind of exploitation, violence (physical, mental or gender based) in the name of religion, culture and traditional practices are declared as crime and the victims are entitled to receive appropriate compensation.

The committee reports also provide additional opportunities for Nepali women.  In the federal and provincial parliament, for example, at least one third of the elected officials should be women. Similarly, a provision has been made to ensure women’s representation in the higher positions, such as the president or vice-president, speaker or deputy-speaker, and the chair or deputy chair of the National Assembly. It has also proposed a constitutional commission for the   promotion and protection of the rights of Nepalese women.
 

The new Constitution can guide the state on “right to property” including the state's policy/principles on land reform but the details could be covered by enacting laws and regulations. The ongoing debate in the Constituent Assembly is on the form of land reform policy – whether the state should adopt a scientific land reform policy or a revolutionary one? The word ‘scientific’ or ‘revolutionary’ may not be a serious problem for the political parties but the provision of compensation is rather a thorny issue for them. The crucial concern is whether or not the state can deal with (for common purpose) individual property or determines certain ceiling with or without a provision of compensation? The other related questions are: What would be the state policy on this issue? If the state is vested with such a power, then, what will happen to the “right to property” - which has already been accepted as a fundamental right? 

‘State shall adopt a practical and scientific land reform policy as provided for by law’ could be the best option to address this issue. It may also open the topic for further discussion, while providing grounds for the enactment of laws on land-related matters.
 

The Constitution does not declare the election dates for each tier of the government. It seems that there will be an election for the centre first followed by the provincial election. Local level election will be the last to be held. Since the CA Thematic Committee report have not determined the number of local bodies, special structures and autonomous regions, it will not be possible to hold local election first. The power to decide the number of local bodies (Gaunpalika and Nagarpalika) and special structures including autonomous region will vest in the provinces.
The transitional provision, however, can allow the state to conduct local-level elections first according to the present structural dispensation because the local bodies are being run without people's representatives for many years.
 

Principally, fundamental rights as guaranteed by the constitution are the core values of the constitution and there should not be any infringement of such rights in any situation – not even through constitutional amendment. This provision was clearly incorporated in article 116 of the Constitution of the Kingdom of Nepal 1990. But the Interim Constitution of Nepal, 2007, does not have such a provision and allows amendment to any article of the constitution by a two-thirds majority of the Legislature-Parliament. The preamble, however, expresses full commitment to civil liberties, fundamental human rights including democratic norms and values. Thus, it is assumed that amendment could be made for the advancement of fundamental rights but they cannot be curtailed through amendment.

Most constitutions contain provisions of declaring the State of Emergency when the defense or security of the state is threatened due to civil disorder, war or natural disaster etc .Yes, during the state of emergency, a number of fundamental rights may be suspended. Such restrictions, however, must be strictly limited to what is absolutely necessary, and they must be proportional and limited.  Further, according to international human rights instruments, a few rights like right against torture, right to a fair trial, right to be presented before court through habeas corpus cannot be suspended even during the state of emergency.
 

There are only a few conflicting issues relating to economic agenda in the new constitution. Major parties agreed to adopt the mixed economic system with three pillars of economic policy i.e. public, private and cooperative. Freedom to run any business or/and industry is guaranteed with some restriction in order to ensure public morality, public health, social harmony and regulate unethical business practices.

Further, regarding the concerns of private sectors, the committee reports have proposed  the right to property; progressive tax system; acquisition of property for public interest; acquisition of property acquired illegally; environmental rights; appropriate labor practice, trade union rights etc. The economic objective of the state is focused on equitable distribution of resources; end of all forms of exploitation; partnership between public, private and cooperatives; and socialist-orientated economic development. It also focuses on prioritizing national investment, competitive industrial development, investment of NRN, research and development, information technology etc.  
 

For the first part of the question, the proposed report of the Committee on Restructuring of the State and Distribution of State Power has proposed the following provision regarding dealing with dispute settlement if any may arise between the provinces, centre and province and with other level of government.

• An inter - state council will be set up to avert any dispute between federation and the state and among states and to resolve the prevailing dispute or to recommend the unresolved matters to the federal legislature. The council shall have (a) Executive Chief - Chairperson; (b) Federal Home Minister- Member ;(c) Federal Finance Minister - Member; (d) Chief of states - Member
• The matters referred from the inter-state council and deemed necessary by the federal legislature may be resolved through discussion at the federal legislature meeting by making laws.
• If failed to be resolved by the federal legislature or the federal legislature deemed it to be necessary, the dispute can be recommended to the federal government for referendum
• If any dispute rose among federation and state, state and state, state and local level, state and special composition and local level and areas of special composition over the enlisted rights of constitution or in the topic of interpretation of constitution, constitutional court shall have the rights to initiate action and settle such dispute.

Similarly, the Committee on Judicial System has proposed that, except otherwise provided in  this Constitution, the federal Supreme Court shall have the jurisdiction to hear original cases relating to dispute between center and provinces and between provinces. So, committee reports have proposed competent authorities to hear such disputes.

To address the second part of question, the proposed report of the Committee on Restructuring of the State and Distribution of State Power has principally accepted identity and viability as the bases of delineating the provinces. A consensus is yet to be reached regarding the name, number and boundaries of the provinces because there still remain some technical matters that need to be resolved. The major objective of federalism as a political tool is to maintain social solidarity among diverse communities through shared and self rule. Some communities will be able to build better solidarity with other communities if provinces are designed with their (prior) consent and or involvement through consultations.
 

Yes, The CA Committee on Fundamental Rights and Directive Principles has recognized a number of economic, social and cultural rights.. The draft specifically guarantees rights to food, freedom from hunger, and food sovereignty etc.

Article 14 of the Interim Constitution, 2063 (2007), provides for the right against untouchabilty and racial discrimination. It states that no person shall, on the ground of caste, descent, community or occupation, be subject to racial discrimination and untouchability in any form. Such a discriminatory act shall be liable to punishment and the victim shall be entitled to compensation as provided for by law.

Furthermore, any act contrary to the following provisions shall also be punishable by law. 

• No person shall, on the ground of caste or tribe, be deprived of the use of services, conveniences or utilities available to the public, or be denied access to any public place, or public religious places, or be prevented from performing any religious act.
• No person belonging to any particular caste or tribe shall, in relation to the production or making available of any goods, services or conveniences, be prevented from purchasing or acquiring such goods, services or conveniences; and no such goods, services or conveniences shall be sold or distributed only to members of a particular caste or tribe. 
• No one shall be allowed to purport to demonstrate superiority or inferiority of any person or a group of persons belonging to any caste, tribe or origin; or to justify social discrimination on the basis of caste and tribe; or to disseminate ideas based on caste superiority or hatred; or to encourage caste discrimination in any form.
   

You can visit http://www.ccd.org.np/new/index.php?action=resources to download Map of Proposed Federal State.

Right to privacy is given to every individual. It respects and protects the confidentiality of person's life, respect, dignity, residence, writings, data, correspondence etc. However, this right is not an absolute one. In certain justified conditions such as issues of national security, public interest, purpose of tax and investigation of criminal cases the state can enact law to put reasonable restriction in right to privacy.

In the constitutional history of Nepal right to privacy has been addressed as fundamental right for the first time in Article 22 of 1990 Constitution. Similarly, this right is guaranteed   by the Interim Constitution, 2007. The Committee on Fundamental Rights and Directive Principles of the Constituent Assembly also acknowledges this right the same way as previous Constitutions.

Further, right to privacy is also addressed by some laws such as Postal Act, 1962 (Section 47 and 58), Telecommunication Act, 1962 (Section 23 (a), 24 and 27 (b)) the Chapter on Court Procedure (Section 172) of Muluki Ain. Some prominent cases related to right to privacy are:
•    Annapurna Rana v. Kathmandu District Court and Others, Nayadoot, Nepal Bar Association, 1998, No. 2 p. 53, SAB (1998), No. 7, p.11).
•    Sapana Pradhan Malla for FWLD v. Government of Nepal, writ no. 3561 of 2063 (decided on 2064.9.10).
 

There are various books on comparative federalism for example: Comparing Federal Systems by Ronald Watts, Exploring Federalism by Daniel J. Elazar, and a multivolume series of Global Dialogue on Federalism published jointly by Forum of Federations and International Association of Centers of Federal Studies etc. Most of these books including others are available in the CCD library. Summaries and  presentations of programs conducted by CCD on “federalism in practice series” and on various dimensions of federalism also can be browsed in CCD library. Information on comparative federalism or federal system of individual countries can be found in various websites. One of the most comprehensive websites for resources related to federal system is http://www.forumfed.org/en/index.php  the website of Forum of Federations.

The SPCBN/UNDP monitoring system includes :

a) Quarterly and annual progress reporting as per corporate formats,

b) Quarterly and annual reporting on a core set of indicators, with the information to be managed and analyzed at the UNDP CO level, in a Gender and Social Inclusion-sensitive Monitoring Information System” (GSI-MIS), 

c) Field monitoring by project and UNDP staff, including UNDP Field Office staff,

d) Annual project review conducted during the fourth quarter of the year or soon after, to assess the performance of the project and appraise the Annual Work Plan (AWP) for the following year,

e) Evaluations, to be conducted as per the Country Programme Evaluation Plan, and according to the UNDP Evaluation Policy.

In his definitive book, “Comparing Federal Systems” (2008) by Professor Ron Watts,  he states that there are 25 functioning federations in the world.  The actual number at this time is 26 with Uganda being the last nation to implement federalism after Prof. Watts’ book was published.

Although it is impossible to say for sure until the new constitution is actually promulgated, there is agreement in the CA about including the following language (or similar language) in the new constitution:

1.    Right to Equality:

• The provisions on right to equality prepared by the Committee for Fundamental Rights and Directive Principles guarantees all citizens equality before the law and the equal protection of the laws. It also guarantees that no citizen will be discriminated against in the application of general laws on grounds of religion, colour, caste, etc.

2.    Provisions on Right Against Untouchability and Racial Discrimination:

• No person shall, on the ground of caste, tribe, descent (origin), community, occupation or physical condition, be subject to discrimination and untouchability in any form
• No person belonging to any particular caste or tribe shall, in relation to the production or making available of any goods, services or conveniences, be prevented from purchasing or acquiring such goods, services or conveniences; and no such goods, services or conveniences shall be sold or distributed only to members of a particular cast of tribe.
• No one shall be allowed to purport to demonstrate superiority or inferiority of any person or a group of persons belonging to any caste, tribe or origin; or to justify social discrimination
• on the basis of caste and tribe or untouchability; or to disseminate ideas based on untouchability or caste superiority or hatred justifying social discrimination; or to encourage caste discrimination in any form.
• No person shall be subjected to any form of discrimination by engaging him or her in an act or work contrary to his or her will, by practicing or not practicing untouchability on the basis of caste or tribe.
• All forms of untouchability and discriminatory acts shall be punishable in accordance with law and an individual victimized by such act shall have a right to proper compensation.

The Committee to Decide on the Structure of Constitutional Bodies has proposed a new constitutional body called the National Dalit Commission to be added in the new constitution.   However there is a discussion going on whether there should be several separate commissions related to Dalits, Madhesis, Muslims, Indigenous Peoples, etc. or one umbrella commission under which all these can be accommodated. Only the CA plenary will be able to decide this issue. The following are the proposed functions for the commission:

National Dalit Commission:

• Perform necessary functions to create favourable environment of exercising welfare and right of Dalits,
• Recommend government to amend policies and necessary prevalent law to carry out the stated functions,
• Formulate required working policies and strategies and recommend the government to put into action for the effective implementation of the international documents on human rights and against social discrimination in Nepal,
• Implement the programme of social vigilance to abolish social discrimination, untouchability and traditional rituals for the upliftment and development of Dalits through NGO's etc.
   

Please Visit http://www.ccd.org.np/new/index.php?cipid=12 to download Constitutional Committee Concept paper. 

To download all (11) concept paper in Nepali and English please Visit http://www.ccd.org.np/new/index.php?action=resources