Support to Participatory Constitution Building in Nepal (SPCBN)

Constitution In Progress

·    Constitutional Committee: On 4 January, the Constitutional Committee submitted its concept paper and preliminary draft to CA Chairman Subas Nembang. Twenty-one notes of dissents were registered. The Committee had finalized the draft through voting on several contentious issues. The Committee’s terms of reference included the name of the constitution, the preamble, definition of the nation and state, national symbols, constitutional amendments, political parties and transitional provisions. The following is a summary of the provisions of the paper prepared by the CCD. This summary is unofficial and intended to provide information to the public until the official translation has been completed.

o Name of the constitution: The new constitution will be called 'Constitution of Nepal, 2067 BS' (referring to Bikram Sambat, the national calendar).

o Preamble: The Committee decided that a preamble should be included in the new Constitution. The draft preamble states that Nepal is to have a people’s, competitive, multiparty, democratic, proportional representative system of government, and shall adhere to the principles of civil liberties and human rights, universal adult franchise, periodic elections, press freedom, a competent, impartial and independent judiciary and the concept of the rule of law. The concept of 'pluralism', proposed by the Nepali Congress and the CPN/UML and other parties, did not receive a majority of votes, neither did the term 'People's War'. However, the Committee endorsed the term 'Madhesh movement' with 29 votes in support and 21 against. UCPN/M included a suggestion in a dissenting opinion to include the term ‘accountable to the people’ for the judiciary.

o Indigenous representatives have expressed dissatisfaction over the draft preamble as it did not include words indicating the identity of the indigenous nationalities and their rights.

o Definition of the nation: Sovereignty and state power will be vested in the Nepali people. Nepal will be a multi-ethnic, multi-lingual, multi-religious and multicultural nation with common aspirations for Nepal’s independence, integrity, and prosperity as binding elements.

o National symbols: The existing national flag will remain unchanged. However, 27 Committee members voted for not changing the national flag, while 24, including the UCPN/M, voted for altering it. The UCPN/M had proposed to change the national flag to include stars to represent the provinces, and expressed a dissenting opinion, as did several Madheshi members. There will be no national emblem (national flower, animal, etc.).

o National language: The Committee referred to the relevant special Thematic Committee that dealt with language issues (Committee on Social and Cultural Solidarity), which had already submitted its report earlier.

o Constitutional amendments: The draft foresees that no amendment could be made to the new Constitution which would go against the norms and values of sovereignty vested in the people, the republican system, the rule of law, independent judiciary, fundamental and human rights, press freedom, pluralism, multiparty competition, adult franchise and periodic elections. A number of federal legislature members (to be determined) can propose a referendum on a constitutional amendment, which will be considered valid if it receives a simple majority of the popular vote. Otherwise, constitutional amendments can be adopted by a 2/3 majority of the federal legislature. The Head of State shall approve such passed bills within 15 days.

o Federal structure: the federal system has not been included in the list of unamendable basic features of the Constitution. However, regarding the boundaries and competencies of the federal constituent units (provinces), the draft foresees that any amendment to the Constitution must also receive the approval of a majority of the legislatures of Nepal’s provinces within three months. The provinces can approve such amendments by a simple majority vote of the provincial legislature. 

o Political parties: The UCPN/M, initially, proposed a ban on registration of "feudal and reactionary" political parties but later gave up its stance. Some small parties are not happy with the provision that the parties' working committees at all levels should be inclusive, reflecting Nepal's diversity. They say it will be impossible to make a small regional party inclusive.

o Transitional provisions: The draft provides for a considerable degree of continuity of the existing state structures into the transitional phase after the new Constitution is promulgation. The CA would serve as interim legislature-parliament until a new one is formed following elections. Likewise, the President, Council of Ministers, the judiciary, local bodies and constitutional bodies would remain in office until new office holders are appointed according to the new Constitution and until any other new structures are formed. Laws would remain in force in the Interim period, but the Interim Constitution would be repealed as such. UCPN/M expressed a dissenting opinion on this issue, stating that the future interim legislature-parliament (currently the CA) should make interim arrangements on the President and the Council of Ministers within a month after promulgation, and make arrangements for judges, constitutional bodies and the autonomous provinces within three months.

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