Centre for Constitutional Dialogue (CCD)

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Constitution In Progress

 

The final push to complete Nepal's new constitution is on! This historic document will be more democratic and more inclusive than any previous constitution. Despite gloomy predictions from some quarters, the Constituent Assembly (CA) (the most representative body in Nepal's history) is poised to complete the historic document within weeks. During the past month, all ofthe Concept Papers for each of the Thematic Committees have been discussed among the members of the CA.  

 

Early in the process, the CA prepared for the process by organizing 11 Thematic Committees that were each responsible for a specific part of the draft document. Each committee of CA members was assigned to write a Concept Paper that provided the information they thought should be in the new constitution. One of the 11 committees and probably the most important, the Constitutional Committee (CC) has the responsibility to condense all of the papers into one draft Constitution that includes all provisions not later than 5 March. CC has formed a ten-member sub-committee, headed by Barsha Man Pun, to recommend a preliminary table of contents for the new constitution.

When the CA Committees were set up in January 2009, Terms of Reference (TOR's) were specified for each Committee. Of 68 issues enumerated in these TORs, 63 have already been resolved and have been incorporated into draft provisions of the concept papers. Although there are significant areas of disagreement between the members of some of the committees, there is much agreement among the members on most important issues. For example, there is agreement on:

 

·        Full right to self-determination to every province and local government for political, economic, social and cultural development, limited by national integrity and unity

·        Possibility for referendum on any issue of national importance upon 2/3 majority decision of federal parliament

·        Nepal is a multi-ethnic, multi-lingual, multi-religious, federal, democratic, republican, secular, inclusive state with full proportionality, free from any discrimination

·        Citizenship: equalization of paternal and maternal sides; transgender rights;

·        Non-discrimination and equality: special arrangements for positive discrimination;

·        Cultural and educational rights: for every person, family and community

·        Free Public Education through high school (Grade 10)

·        Religious freedom: accept or not accept; profess and practice; disseminate; renounce or convert, associations and schools, management of places.

·        Equality of languages - respect for linguistic and cultural diversity:

o   Nepali in Devanagiri script to be official language of Central Government (“for now” – until Language Commission recommends otherwise and law is passed); Provincial parliaments to decide on poss. additional languages to be official in Province and in local bodies; Province may use own languages vis-à-vis central level; Provinces may agree to use other languages between themselves

o   Nepali to be language of court proceedings

o   Everyone entitled to use their mother tongue for public services and at court (concerned bodies must translate)

o   Right of each community to education in the mother tongue [not stated what level], right to protect, maintain and practice its culture, and script

o   Commission on Language to be established (with representation of Provinces)

·        Inclusion and diversity:

o   Indigenous groups to have right to their identity and respectful access to natural resources on the basis of their dependence on such resources

o   Right against untouchability and caste discrimination: no discrimination shall be made on basis of caste, ancestry or community, and expressions based on hatred or justifying social discrimination shall be banned; however, policy of positive discrimination to be pursued by the State; special rights to women and Dalits

 

·        Economic and social policy:

o   State to distribute resources available in Nepal on the basis of social justice to remove all kinds of economic and social inequalities

o   Social justice: Each individual has “right to develop personality, fair dealing from others and equal access to resources of the state”;

o   Social security: for single women, elderly, disabled, impaired, helpless, and tribes

·        Relief, recognition and rehabilitation for conflict martyrs and their families

·        Commissions as in the Interim Constitution (IC) , (i.e., Commission for Investigation on Abuse of Authority (CIAA), (Federal) Public Service Commission (PSC), (Federal) Election Commission (EC), and (Federal/National) Human Rights Commission (HRC) are listed as constitutional bodies. The Auditor General (in the IC) will be transformed into a (Federal) Audit Commission (AC)

·        Six new commissions: (Federal) Women’s Commission (WC), (Federal) Dalit Commission (DC), (Federal) Indigenous (Adivasi Janajati) Commission (AJC), (Federal) Commission for the Protection of the Rights of People with Disabilities, Minorities, Marginalized Groups and from Backward Regions (DMMC), (Federal) Madhesi Commission (MaC), and a (Federal) Muslim Commission (MuC)

·        The Committee Members agreed that there should be a democratically elected parliament serving as legislative body at the central level.

·        The Committee draft suggests that there be a House of Representatives (151 Members) However, there is dissent on establishing of bi-cameral legislature containing a second house, known as a National Assembly (51 Members)

·        The 151 Members of the House of Representatives would be directly elected every 5 years. 76 MPs through “direct election in 76 constituencies” (comment: although not stated, this presumably means some form of majority-based system), and 75 by proportional representation. 

·        If dissent is resolved, there will be 51 Members of the National Assembly who would serve 6 years (with 1/3 being elected every two years). 38 of them would be “directly elected” and 13 Members would be nominated from marginalized groups.

·        Legislative procedure: Draft bills can be introduced in both houses, except Finance Bill (only HoP). To become an act of law, a bill must be passed by both houses. The National Assembly however has only 15 days to react on the Finance Bill: if not returned within that limit, the HoP can proceed without the NA. The NA otherwise has two months to send a bill back to the HoP with recommendations (or reject it), and the HoP can overcome any NA concerns with another simple majority of all members.

·        There has been an apparent agreement on a quota for women. However, the details are not clear. The draft includes that “a minimum of 1/3 of the total number of candidates nominated” must be women. The text on provincial parliaments (“1/3 of members of provincial parliaments shall be women”) is much clearer.

·        The Committee also agreed that either the Chairperson or the Deputy of both houses must be a woman.

·        The Provinces are to have unicameral parliaments with 35 Members each – 18 “directly elected” and 17 elected through a proportional system.

 

The key issues in the current debate relate to the forms of government, the electoral system, the boundaries of federal provinces, ‘preferential rights’, the independence of the judiciary and arrangements for the transitional period after the promulgation of the new constitution.

 

·         Form of Government: Maoists favour a directly elected President heading an all-party Government with a single chamber of parliament. NC/UML favour a parliamentary system led by a prime minister with a president indirectly elected by a bi-cameral parliament and the provincial assemblies.

·        Elections: The Maoists favour a winner-takes-all system of elections at the federal and provincial legislative levels with quotas for the large community groups. NC/UML favour the system adopted for the 2008 elections - a combination of first-past-the-post and proportional representation.

·        Judicial Appointments: The Maoists seek a role for Parliament while other parties and the legal-judicial establishment strongly advocate for the current structure and practice.

·        Provinces: The names, numbers and boundaries of the future provinces represent an intractable element of the current debate.  

·        Proportionality: Guarantees of proportionality for ethnicities/castes, regions, and genders figure in the preamble as well as in provisions addressing fundamental and minority rights, political structures and the electoral system. The reach of these principles is uncertain. For example, will the right to proportional representation for women be applied to only the party-proportional race of a mixed electoral system (as it was done in 2008 when it produced a CA with one-third women) or will it also apply to the first-past-the-post component, guaranteeing 50% of the seats to women? Such questions are likely to emerge once the detailed consequences of different models, systems and provisions have been thoroughly analysed and are well-understood.

·        Other:  There are also potentially contentious issues that the Concept Papers have so far avoided or underemphasized. These include the management of the transition to federalism, the details regarding the so-called Special Structures (i.e. Autonomous, Protected and Special Regions), and security sector issues.

·        CA members have made significant efforts to complete the 11 Concept Papers, including

o   forming 47 sub-committees and 18 taskforces,

o   holding 682 committee meetings (127 by the Committee on State Restructuring and State Power Division, alone),

o   producing reports totalling 2,933 pages, the longest of which was produced by the Committee on Fundamental Rights and Directive Principles (560 pages),

o   preparing 117 pages of draft provisions (a medium length constitution; e.g., the Indian Constitution is over twice as long)

o   Adopting two reports by consensus, while putting 9 others to a vote.

·        The work of the CA has shown a commitment to inclusion.

o   3 of the 11 Committees were chaired by women

o   5 Committees were chaired by Janajatis, including two Tharus and one Newar, four by Brahmins, including one Terai Brahmin, and two by Madheshis including one Dalit