Thursday, March 25, 2010

Unfinished business

Koirala was crucial to taking away so many things from the people of Nepal; he was able to return none before his demise. One such debt that Koirala incurred but left without paying it off was a democratic constitution. The other was the pride of the Nepali people — their precious independence as a sovereign nation.

Bipin Adhikari
The Kathmandu Post
March 25, 2010

G. P. Koirala became history on March 20. A four-time prime minister, giving leadership to the country for almost eight years in that capacity, Koirala had been active in politics for the last six decades. From January 2007 to July 2008, he also had the honour of symbolising the nation as the acting head of the state.

During the last 20 years, he had a pervasive presence in the politics of Nepal; and his role, whether he was leading the government or the opposition, had a decisive impact on the situation that Nepal was in all through these years. He was crucial to resolving the Maoist insurgency, affecting the quality of the liberal democratic movement in the country, bringing them into mainstream politics, abrogating the constitution of 1990, taking several strategic decisions affecting the country, establishing a new constitutent assembly and abolishing the monarchy. Koirala also gave leadership to the seven party alliance in signing the 12-point understanding with the Maoists in November 2005 (according to a peace plan facilitated by India).

It is difficult for anybody to face the reality that Koirala is no more. He was the state at least in the perception of the Maoists. The (most visible) guardian of the peace process and the one who gave a democratic facade to the recent reshuffles in Nepal is out of the scene. There is no heir apparent, and no roadmap for the future. He was crucial to taking away so many things from the people of Nepal; he was able to return none before his demise. One such debt that Koirala incurred but left without paying it off was a democratic constitution. The other was the pride of the Nepali people — their precious independence as a sovereign nation.

Nepal’s constitution of 1990 and the German constitution of the Weimar Republic of 1919 suffered a similar fate. They became the victim of insincere leaders and international forces playing foul on different pretexts. The constitution of the Weimar Republic also intended to institutionalise the parliamentary form of government, and establish the image of Germany as a democratic country leaving the imperial regime behind. It also emerged from the German revolution of November 1918, which expressed faith in liberal institutions. Unfortunately, the liberal democracy that it established eventually lapsed in the early 1930s, leading to the ascent of the National Socialist German Workers’ Party and Adolf Hitler.

The Weimar constitution (adopted in the city of Weimar) was also (when promulgated) described as the best constitution in the world. It provided, like the constitution of 1990, the required space for all the political forces of the day. Both had a very decent beginning and promises for the future. Both were accepted by the common people. Unfortunately, the Weimar constitution was thrown out because it could not give enough leverage to the aspirations of Adolf Hitler, and the 1990 constitution was thrown out because it allowed little foreign hand in Nepal’s politics.

Moreover, it must be noted that the Weimar constitution was never officially repealed. The people were not prepared for this. It was attacked bit by bit, through a planned conspiracy. The legal measures taken by the Nazi government in early 1933, commonly known as “coordination” (gleichschaltung)meant that the government could legislate contrary to the constitution. Like the 1990 constitution of Nepal, it became irrelevant as time passed. The only major difference is that the next constitution was brought faster in Nepal than in Germany — but in both cases bringing major changes in the country in which the ordinary people had no say. The contexts of both the countries are different, and so the motivating factors and the tensions of cold war. But in Germany, Adolf Hitler was the main architect of this transition, and in Nepal, it was G.P. Koirala.

Koirala had a long and cherished democratic history. He was a seasoned politician. He also had an important role in all the past mass movements in Nepal. His contribution to political and economic reform in Nepal in the 1990s is also laudable. His tall, soaring personality always appealed to the people. In daura suruwal and black cap, he had a very firm and noble look. Wearing spotless clothes and shining shoes, he was a clean person, up and moving all the time. He never allowed his personality to be soiled. Full of energy, nothing was impossible for Koirala. He was a man of action — and a man of the masses. His confidence always demonstrated how smart he was in his mental make-up. He did his work himself. The personal discipline that he maintained in his day-to-day life was remarkably outstanding.

Koirala never spoke more than what would be necessary in a particular situation. He never promised anything that was not within his capacity to fulfil. He was gifted with unlimited patience to listen to others. He had an unusually high respect for women and children. He did not talk about money ever. He never kept a wallet either. He ate little, and lived with only what could be considered the bare necessities of life. He hated speculation. He was straight in his approach to politics. Above all, he endeavoured hard to implement what he had decided. These simple yet incredible aspects of his character and personality made him a tall human being.

Yet, as a politician, Koirala had a problem in the basics. A political Koirala was a problematic Koirala. He talked of democracy only in relation to the king and himself — and not in relation to his cadres and himself. It had no meaning in his political life. His party the Nepali Congress always suffered his apathy to party conventions, free competition, internal elections and popular decision making. He believed in his coterie more than his cadres. The party was without intellectual leadership during these difficult years. He had neither a big head as a planner and campaigner, nor a big heart as a politician. Yet he prevailed everywhere.

The peace process is faltering. The legacy that Koirala has left has no content of inspiration for anybody. The mood of the Constituent Assembly, and the political parties on the front line, hardly show that a new democratic constitution is about to be promulgated within the next two months. There are flaws in many documents that the assembly has produced. Koirala had no inputs for the constitution making, nor comments on the output of the house. He had little design options even as a party leader.

Extremist forces are coming up. This country is being divided on regional, ethnic and communal lines. The capacity of the democratic forces to deal with these issues remains shattered. The most terrible part of the scenario, however, is that there is no direction for a change.

The country is without leadership. Its nationalist ego is also being shattered. There are attempts to destabilise the national army as well. Had Koirala understood his own capacity and the capacity of this nation to go for revolutionary changes without hurting the values of the rule of law and the dictates of constitutionalism, this country would not have suffered this much. His poor leadership, personal ambitions and taking decisions upon the advice of foreign patrons are largely responsible for the poor state of democratic politics in this country. Koirala should have lived to face the mess that he created himself, and sort it out in a dignified way. Unfortunately, that option has also been taken away by God.

Friday, March 12, 2010

Lessons from history

The Bolsheviks had only won a quarter of the seats in the elections to the Constituent Assembly (CA) in November 1917. They were shocked to see that the October Revolution they had forced on Russia one month before by overthrowing the provisional government had not been legitimised by the voters. So they proclaimed the newly elected assembly to be a “bourgeoisie” assembly – an assembly that had no regard for the Soviet government instituted by Lenin & Company.

The Kathmandu Post
March 12, 2010

The Bolsheviks had only won a quarter of the seats in the elections to the Constituent Assembly (CA) in November 1917. They were shocked to see that the October Revolution they had forced on Russia one month before by overthrowing the provisional government had not been legitimised by the voters. So they proclaimed the newly elected assembly to be a “bourgeoisie” assembly – an assembly that had no regard for the Soviet government instituted by Lenin & Company.

When the newly elected assembly refused to support the programme of the new Soviet government, the Bolsheviks walked out in protest, and later dissolved the house. For Vladimir Lenin, the leader of the revolution and the Soviet government, the elected house was an obstacle to the Soviet government. His ambitions were further unfolding. Many years after Lenin’s death, British statesman Winston Churchill had a comment on the fate of Russia, “The Russian people were left floundering in the bog. Their worst misfortune was his birth… their next worst his death.”

This is not a story of the Bolsheviks only. The history of constitution making is replete with revolutions misled and new constitutions backfiring upon the people. A few successful examples like the United States (1787), India (1950), South Africa (1996) and others are the best part of the discourse. However, many revolutions produced very good literature for posterity, but either very bad constitutions or the worst governments for the suffering people.

The French Assemblée nationale constituante of 1789 is a case in point. It produced a constitution in 1791 after surviving the vicissitudes of a revolutionary two years, but led the country to prolonged instability. That came to an end only after adopting the constitution of the Fifth Republic in 1958. It was drafted by Gaullist politician Michael Debré, and not by any Constituent Assembly. It was indeed the 17th constitution of France.

General Charles de Gaulle, World War II fighter and founder of the Fifth Republic, commented very frankly that a country which had 246 varieties of cheese cannot just be governed by uniform standards. He said, “I have come to the conclusion that politics are too serious a matter to be left to the politicians.” As president, Charles de Gaulle ended the political chaos that preceded his return to power. But France is still struggling to eliminate the imprints of authoritarianism in the system of government that has a strong historical legacy.

Nepal remains misled while the Constituent Assembly is faltering. It should have been seen working with nervous energy, and fixing the first comprehensive draft of the constitution to bring it to the public any time now. This is not the case. The assembly has not even been able to match the pull and efficiency of Prime Minister Jung Bahadur Rana’s Kaushal Adda that codified the first national code of Nepal back in 1854. It was a representative body by the standards of his time, powerful and filled with experts which had the mandate for codifying any type of law or constitutional arrangement that they found Nepal had been observing as the rule of law. Above all, it was able to deliver what it was appointed for. The heartiness of the house and the euphoria that it created must be something the sovereign representatives of the present day Nepal find enlightening.

The idea of a Constituent Assembly does not hold water where there is no faith in certain immutable principles that establish the basic human rights of the people and check democracy. The process loses sanctity in the absence of this basic commitment. One must be reminded of how the Constitutional Court of South Africa back in 1996 had turned down the draft constitution that the Constituent Assembly had proposed. There is little doubt that they followed a remarkable and exemplary process of constitution-making, signalling not only a formal transition from apartheid to constitutional democracy, but also a peaceful end to what had been a very violent struggle for a new form of governance.

South Africans started drafting the constitution by first setting out 34 constitutional principles in the Interim Constitution. The Constitutional Court was given the responsibility to certify that the draft constitution was in conformity with these principles. This certification process ensured that the draft constitution met with the original basic principles that the opposing sides had agreed to before beginning constitutional negotiations. After the Constitutional Court identified the draft’s deficiencies, based on certain immutable principles of the rule of law and constitutionalism, the constitutional assembly reconvened and amended their original draft. This amended version was later certified by the court, and came into force in 1997.

It is not just South Africa, but all civilised societies believe in what the South African CA re-established through its remarkable procedures. If Constitutional Committee (CC) Chairman Nilambar Acharya, going by the same principles, calls for clarity on 16 issues, it should not be politicised. The CC, which is entrusted with working out an integrated draft report that incorporates all the 11 preliminary drafts, has every right to bring these issues to the table because the committee can’t take its work ahead without resolving these contentious issues immediately. Many of the questions that Acharya has raised bring back the same issues whether the substantive limit on a political process related to the formulation of a constitution should be observed or not.

The Constituent Assembly has no right to fail. Its failure will not only raise a serious question on the ability and integrity of the present generation of leaders, but also on the faith that democracy delivers after all. The luxury has become an essence now. Whether by way of a framework constitution, as this critique proposed on the eve of the New Year in this column, or a comprehensive constitution, whatever that might mean, it must produce a document that ends the transition process, at least for now. The initiation of CA Chairman Subas Nembang and the Constitutional Committee chairman must continue (despite the Maoist concerns on the move).

A Constituent Assembly that establishes representative democracy, but not the substantial aspects of constitutionalism, amounts to a total failure. This is the reason that people these days talk about “constitutional democracy” more than representative democracy. Certain basic principles of the rule of law and constitutionalism must be in place to establish “constitutional democracy”. It provides assurances that the end of politics – while unknown – can still be guided in a particular direction. This, of course, requires an effective enforcement mechanism.

Tuesday, March 2, 2010

ँछिटो सक्न छोटो’ - दुर्गा खनाल

The Kantipur Daily, March 2, 2010

काठमाडौ, फाल्गुन १७ - तोकिएकै समयमा संविधान जारी गर्न संविधानसभाका अध्यक्ष सुवास नेम्बाङले मुख्य मुद्दासहितको छोटो संविधान वा 'प्रक्रिया छोटयाउने' विकल्प अघि सारेका छन् । संविधान जारी गर्न तीन महिना मात्र बाँकी रहँदा विवाद नमिलेपछि दुईमध्ये एकमा राजनीतिक समझदारी नहुने हो भने जेठ १४ मा संविधान जारी हुन नसक्ने संकेत उनले गरेका हुन् ।

छोटो संविधान 'बेल्जियम मोडेल' हो । बेल्जियममा प्रमुख विषयलाई उल्लेख गर्ने र लामो प्रक्रिया लाग्ने तथा प्राविधिक विषयलाई पछि मिलाउने गरी संविधान जारी भएको थियो । 'बेल्जियमको उदाहरण हामीले अपनाउन सक्छौं,' उनले सोमबार भने, 'मोटो कुरा राख्ने र मसिनो गृहकार्य गर्नुपर्ने विषय पछि मिलाउन सकिन्छ ।' बेल्जियमले संघात्मकतासम्बन्धी प्रावधान उल्लेख गरी त्यसका अन्य प्रक्रियाहरू पछि मिलाउने गरी संविधान जारी गरेको थियो । 'जेठ १४ भन्दा उपयुक्त समय अर्को छैन,' उनले भने, 'एउटा बाटो निकाल्नुपर्‍यो, यसका लागि पनि राजनीतिक दलको समझदारी आवश्यक छ ।' नेम्बाङले प्रमुख दलका बैठकमा पनि यी विकल्प प्रस्ताव गरेका छन् । तर दलहरूले यी प्रस्तावमा आफ्नो दृष्टिकोण दिएका छैनन् । 'यो विषयले दलका बैठकमा प्रवेश पाएको छ तर छलफल सुरु भएको छैन,' संविधानका विवाद मिलाउने अनौपचारिक संयन्त्रमा रहेका कांग्रेसका सभासद रमेश लेखकले भने, 'राजनीतिक सहमतिबेगर त्यो विकल्पमा जान सकिँदैन ।'

एमालेका प्रमुख सचेतक भीम आचार्यले विकल्पबारे कुरा उठे पनि दलहरूले कुनै दृष्टिकोण तयार नगरेको जानकारी दिए । जटिल विषय भएकाले त्यसलाई छाडेर अघि जान नसकिने अवस्था रहेको उनले बताए ।

उता संवैधानिक कानुनका जानकारहरूले बृहत् संविधान जारी गर्न असम्भव रहेको बताएका छन् । उनीहरूका अनुसार अध्यक्षले भनेजस्तै छोटो संविधान जारी गर्न सकिन्छ । 'तत्कालका लागि प|mेमवर्क संविधान जारी गर्न सकिन्छ, यसको अर्थ त्यो संविधान अपूरो हुन्छ भन्ने होइन,' संवैधानिक कानुनका जानकार अधिवक्ता डा. विपिन अधिकारीले भने, 'जसका निम्ति लामो बहस चाहिन्छ त्यसलाई पछि मिलाउने व्यवस्था गर्न सकिन्छ ।' उनका अनुसार अमेरिका, इन्डोनेसिया, ट्युनिसिया, कोसोभो, रुमानियालगायत मुलुकले यस्तो अभ्यास गरेका छन् ।
संवैधानिक कानुनका अर्का जानकार डा. भीमार्जुन आचार्य पनि समयमा संविधान जारी गर्नका लागि यस्तो विकल्प अपनाउन सकिने बताए । 'छोटो संविधान जारी गरेर कतिपय विषयलाई पछि मिलाउन सकिन्छ,' उनले भने 'तर यसका लागि राजनीतिक दलले जनतालाई पनि कन्भिन्स गर्न सक्नुपर्छ ।'

यसरी जारी हुने संविधानमा शासकीय प्रणाली, शक्ति पृथकीकरण, मौलिक हक लगायत आधारभूत कुराहरूचाहिँ उल्लेख भएकै हुनुपर्ने अधिकारीले बताए । 'राज्य पुनःसंरचनाको सवालमा कतिवटा प्रदेश रहने भन्ने उल्लेख गरेर त्यसको अन्य प्राविधिक कुरा पछि गर्न सकिन्छ,' उनले भने, 'अन्य मुलुकमा यस्ता विषयमा धेरै समय लागेको उदाहरण छ ।'

जेठ १४ मा संविधान जारी गर्नका लागि सबैभन्दा जटिल विषय पनि राज्य पुनःसंरचना हो । संविधानसभाको समितिले प्रस्ताव गरेको १४ प्रदेशको ढाँचामा अधिकांश दलको विमति

छ । यसलाई राज्य पुनःसंरचना आयोगबाट टुंगो लगाउनुपर्ने माग उठिरहेको छ । यस्तो अवस्थामा राजनीतिक दलले चाहेर पनि यो प्राविधिक विषय तीन महिनाभित्र टुंग्याउने समय छैन । अध्यक्ष नेम्बाङको अर्को विकल्प 'प्रक्रिया छोटयाउने' हो । संविधान निर्माणको कार्यतालिकाअनुसार अघि बढ्ने हो भने अब जेठ १४ को समयसीमा ती प्रक्रिया पूरा गर्न नसकिने अवस्था छ । अझै धेरै प्रक्रिया बाँकी छन् । कार्यतालिकाअनुसार आगामी शुक्रबारसम्म संवैधानिक समितिले पहिलो एकीकृत मस्यौदा तयार गरिसक्नुपर्ने थियो ।

तर पहिलो मस्यौदा त्यो समयमा तयार नहुने निश्चित छ । अघिल्लो पटक फेरि संशोधन गर्न नमिल्ने गरी कार्यतालिका परिमार्जन गरिएको थियो । त्यसैले अब प्रक्रिया छोटयाउनेबाहेकको विकल्प छैन ।

'प्रक्रिया छोटयाउने हो भने संविधानसभाभित्र विज्ञहरूको प्राविधिक समूह तत्काल बनाइहाल्नुपर्छ,' अधिवक्ता अधिकारी भन्छन्, 'त्यस्तो समूहले विषयगत समितिका प्रतिवेदनभित्र रहेर संविधानको खाका बनाउँछ र अहिले जारी गर्नुपर्ने र पछि मिलाउने विषय छुटयाइदिन सक्छ ।' प्रमुख राजनीतिक दलहरू संविधानका अन्तरवस्तुमा सहमत नहुँदा यस्ता विकल्प आएका हुन् । संविधान निर्माणका लागि १० वटा समितिमा रहेका विवादहरू अहिलेसम्म दलले मिलाउन सकेका छैनन् । गत मंसिरदेखि नै प्रमुख दलका नेताहरू छलफलमा बसिरहेका छन् । नियमित छलफलमा सहभागी एक नेताका अनुसार उनीहरूले आफ्ना पार्टीका अडान छोडेका छैनन् । 'सरकार बनाउने र सेना समायोजनलगायत विषयहरूलाई संविधान निर्माणसँग जोडदा विवाद जहाँको त्यहीं छन्,' ती नेता भन्छन् । संविधान जारी गर्ने अन्तिम समयमा हुने राजनीतिक लेनदेनलाई मध्यनजर गर्दै नेताहरू दलीय अडान छोड्दैनन् ।

Writer's block March 2010

By: Bipin Adhikari

The hundred-day deadline has just passed for the promulgation of Nepal’s long-awaited new constitution. But there is little optimism that this date will be met.


Shortly after Madhav Kumar Nepal was elected chairman of the Constitutional Committee of the Constituent Assembly, in January 2009, he brought together some 25 Nepali lawyers for a meeting. As a consensus candidate agreed by the major political parties, he had been brought into the House as a nominated member to lead this committee, even though he had lost the election of April 2008 – and, therefore, access to the Assembly. After accepting the responsibility of leading the principal drafting body at the Constituent Assembly, the senior Communist Party of Nepal (Unified Marxist-Leninist) leader – and current prime minister – wanted to meet with the constitutional lawyers to discuss how to move ahead with the technical aspects of the constitution-drafting work, the primary purpose of the Constituent Assembly.

During the course of the meeting, he took the opportunity to discuss the process that had been followed thus far by the Constituent Assembly since it came into existence on 28 May 2008, as well as the process of drafting the statute and easing ongoing irritations. Some of the lawyers assembled were quick to explain how, in the history of constitution-making, some able individuals (such as James Madison or Alexander Hamilton in the US, or B N Rau or Bhimrao Ramji Ambedkar in India) had been crucial to drafting the document, while involving others in the process. The immediate question from Chairperson Nepal, who is known for his simplicity, was “Tell me, jurists, from among all of you, or those in the Constituent Assembly, who could qualify to be James Madison or B N Rau for us?” Everybody smiled and looked at each other, but there was no answer.

Four months later, Madhav Nepal went on to become prime minister, and a jurist from the House, Nilambar Acharya, took over his position as chairperson. But the question remains unanswered. Indeed, the problem with Nepal’s Constituent Assembly is not just that it has neither a technical team of experts nor elected legal or constitutional talents working with the drafting body inside the House; rather, the issue goes far deeper.

At the outset, it must be stated that the Constituent Assembly, tasked with writing a new constitution and fundamentally reshaping the government as part of the peace process, has already completed 21 out of the 24 months mandated for it to do its job. A body of 601 members – of which 240 were elected in a direct vote, another 335 came to join on the basis of proportional representation, and the remaining 26 were nominated by the government leading the transition – is no doubt a particularly inclusive, heterogeneous group, and one that is, the most representative assembly that Nepal has ever seen. It represents most of the country’s political forces, from the revolutionary Communist Party of Nepal (Maoist) to the regionalist Madhesi Janadhikar Forum, as well as a variety of fringe parties. As the first inclusive body to represent Nepal’s multi-religious, -lingual and -ethnic communities, it is a mosaic of Nepali diversity and pluralism. “It is the House of peasants, the House of industrialists and the House of the marginalised people,” The chairman of the Constituent Assembly, Subhas Nemwang, said to an international audience on 15 January. “It is set to work on the new constitution for Nepal as part of the comprehensive peace process that the country is passing through.”

This House is to restructure the state, establish the identity of indigenous communities and minority groups; end all discrimination based on ethnicity, language, culture and religion, and regional diversity; end all forms of feudalism; and establish a new Nepal. As a prelude, the 1990 Constitution was withdrawn, an interim constitution was enacted declaring Nepal to be secular. (This had little check and balance as when compared with the constitution that it replaced), citizenship certificates were issued to millions, the electoral system was modified, and a proportional system of representation was introduced, all before holding the elections to the Constituent Assembly on 10 April 2008. The Fourth Amendment to the Interim Constitution even declared the country to be a federal set-up, before any discussion on the issue took place in the House. No sooner had the first meeting of the Constituent Assembly taken place than it abolished the monarchy, and gave 15 days to the king and his family to leave the Narayanhiti Palace. Things were getting done, it appeared, at breakneck speed.

Vague committees

The Assembly has 11 thematic committees, tasked with producing a concept paper and preliminary draft in the constitutional area that each had been allocated. All committees are of equal strength and capacity, and are empowered to make proposals to the full House. By now, all of these committees have done their work. But as expected, their reports are not unanimous – sometimes mere majority formulations, or not even that, and most include dissenting opinions. After arguing for the past year, for example, the Committee on the Determination of the Form of Government submitted its report to the full House with almost four options as to what form of government Nepal should adopt in the changed context. Their task, of course, had been to decide on one. In the absence of clear direction as to the form of government (parliamentary, presidential, or mixed?), the rest of the work that the Constituent Assembly has so far accomplished looks something like a Statue of Liberty without a head.

It is the Constitutional Committee that has the responsibility for formulating the final draft, for which it is to build on both the thematic reports and the recommendations and directions of the full House, following debate on each committee report. From the beginning the idea has been to draft the constitution according to a bottom-up approach – even the committees did not rely on any draft prepared by experts in finalising the preliminary draft proposals, instead starting from scratch. By 5 March, the Constitutional Committee is expected to bring out the first draft of the constitution, in accordance with a schedule that has now been revised seven times. Yet the job seems ominously difficult, given that the committees have resolved little on matters where there are major differences, particularly between the Maoists and the rest. Indeed, only one report seems to be relatively finalised, that of the Committee on the Allocation of Natural Resources, Financial Powers and Revenues. Instead, the committees have helped to further polarise the political parties.

According to the Interim Constitution, the final draft of the constitution, following public consultation and debate, must be taken to the plenary meeting of the Constituent Assembly, which is then to undertake a clause-wise discussion and vote. Once there is agreement on each provision, the entire draft is to be taken for adoption by the House before its promulgation. According to the present interim arrangement, the new constitution must be adopted and promulgated by the end of two years – ie, by 28 May 2010. But very few are optimistic that the Assembly would be able to do following this schedule.

Dealing with undoubtedly one of the most controversial issues, the Committee on State Restructuring and Allocation of State Powers only recently published its report, reaffirming its contentious commitment to re-design Nepal on the basis of federalisation along ethnic lines. Many have long warned that a 14-province Nepal, out of which seven have been given ethnicity-based names (such as Newa, Tamuwan and Limbuwan) would come with in-built discriminatory arrangements – in a country that is said to have 103 ethnic categories, this proposal is sure to arouse ethnic sensitivities of the neglected lot more than ever. Further, there are very few who believe that such a set-up would be economically workable; the federal arrangement is not asymmetrical, all provincial units are treated by the same standards as far as centre-state relations are concerned, and little attention has been given to reasonable farmland claims, capacity and potentials of each province. Provinces such as Jadan and Sherpa will not be able to feed their people for even a month with their existing farmland capacity. There is cynicism regarding the demarcation of the provinces, and also the basis on which their size is determined, while the report contains nothing about how an ethnic division is going to secure a competitive advantage for the inhabitants in each province or for the country as a whole. Critics suggest that these provinces will barely be able to survive for a half-year.

There are also problems with the exhaustive list of fundamental rights and directive principles of state policy released by the Committee on Fundamental Rights and Directive Principles. While it is very liberal, as much as it identifies the basic rights of the Nepali people, the list is without judicial sanction in most of the cases involving the economic, social and cultural rights. The responsibility is placed in the government to pass the necessary laws and implement them within two years. Yet one can easily see that such a demand placed on the shoulders of the state is too heavy, particularly without considering how a non-performing economy can help the state to fulfil such requirements. The report of the Committee on the Rights of Minority and Marginalised Communities has also created controversies by putting forth ambiguous provisions as to the compensation to be paid by the state to certain communities for past abuses against them. In the same vein, the Committee on Determination of Structure of Constitutional Bodies has proposed 11 independent commissions to deal with issues specific to Madhesis, Dalits, indigenous peoples and others, substantially limiting the role of the elected government in the affairs of the state.

The report of the Committee on Judicial System recommends many questionable provisions in the new constitution, which belittle the parameters of the Supreme Court as the guardian of the constitution. It robs the power of judicial review from the Supreme Court, which can neither interpret the constitution in any significant sense, nor can it judge upon the constitutionality of any law where it matters most. The report also makes sure that the Supreme Court and its judges are under parliamentary control in all matters relating to their appointment, dismissal and the job of judicial decision-making. A Special Judicial Committee is provided for in both the central and provincial legislature to take care of these issues. Yet a federal system cannot work in a society where the federal Supreme Court does not have the power to interpret what the constitution says, and decide on the controversies regarding the division of powers between the federal and constituent units. Without the power of judicial review, and the ability to strike down a legislation that contradicts the constitution, a Supreme Court cannot maintain the supremacy of the constitution.

Similarly, the report of the Committee on Determination of the Form of Legislative Organ is insufficiently conceived. It is not clear whether the legislature is supposed to be a presidential set-up, or parliamentary or ‘mixed’. Further, the report of the Committee on the Preservation of National Interest has not been able to provide for a credible arrangement for the country’s defence forces. Admittedly, the issue must be kept outside day-to-day politics, and attempts to bring abrupt change in the institution must be resisted. However, the committee’s suggestion to establish a national defence council, where there is no representation of the chief of army staff, cannot be considered anything but a wild arrangement, serving neither democracy nor any national interest. The provision of compulsory military training to youths without the leadership and support of a disciplined army is also not a viable concept. While many successful small states do practice this to some extent, the provision serves only when there is explicit determination to keep the army out of any military alliance, soft or hard, and its politicisation can be thoroughly prevented.

Finally, the work so far done includes no economic vision for the state. For instance, the current recommendations do not even consider, much less take a position on, how to preserve access to a secure and reasonably priced supply of oil in place of the current India guarded supply system. There is also no direction about the national food-security strategy, a constant and crucial issue. Further, it is questionable how a country can preserve its national interest without a clear concept on how to deal with internal security challenges such as climate change, floods and natural disasters affecting a large segment of the people.


As referred to by Madhav Kumar Nepal’s question at the beginning of this article, all these drafts have suffered in the absence of outside technical support. Most of the important modern examples of success in getting a new democratic constitution through an elected constituent assembly have something in common: the presence of a charismatic leader who commands the confidence of the House and the people at large, and is able to give necessary patronage to the process. There are a few other factors in common, too: for instance, the presence of a party in the assembly that not only speaks to the conscience of the people, but also keeps necessary political clout to push the document through. Also important is negating ideological gaps between the dominant party and the others, in terms of commitment to liberal democracy, the basic values of limited government and the rule of law. Also, that all involved look forward to building a nation with positive energy and forward-looking strategies, rather than looking back and scolding the past in order to build the future.

For example, the Indian Constituent Assembly certainly satisfied these requirements. Few can miss, for instance, the critical patronage of Mohandas K Gandhi, and the overriding presence and clout of the Indian National Congress. Also, very few points of divergence emerged between the Congress and other smaller groups, while general commitment on the part of the political actors to build the nation on the strength of liberal values was extremely helpful. Indians were determined to throw off the yoke of Great Britain, but were not ready to dispense with the virtues of Westminster-inspired institutions, which they believed provided a model for Indian democracy. This is true of South Africa as well.

Worryingly, these common attributes are hardly to be seen in the Constituent Assembly of Nepal. While this body is very promising in terms of its composition, for better or worse the Constituent Assembly is today a divided House – politically, as well as in its long-term determination. There is no choice but to move on, but to enact a new constitution within the next three months is very difficult. Importantly, the Interim Constitution, which defines the role of the Assembly, does include a chapter on constitutional amendment, but it does not suggest anywhere that this chapter could be used to prolong the constitution drafting time frame. It is also true that there are no express limitations on the power of the Parliament to amend the constitution. But exercising the power of the Parliament to prolong the tenure of the House could be counterproductive, as by now the people of Nepal know that things are not merely black and white. At the moment, the only sustainable way forward seems be to go for a framework constitution that represents the existing consensus in Nepal’s political society, leaving the rest of the issues for the future. The parties could thus go ahead with the existing institutions where there is no consensus.

Many Nepalis believe in last-minute ‘miracles’. In this context, such a miracle would include a framework constitution (as this writer and other lawyers have suggested), or by extending the tenure of the House for another six months, as many of the Assembly members are urging. More broadly, however, the problem of Nepal’s constitutional development lies not merely with the House. Even if the new constitution is finalised and promulgated, after all, it might still collapse the way the last five constitutions collapsed – without even knowing the factors that caused their demise. No matter how good the constitution or how democratic the people, Nepal’s geophysical situation makes peace and stability difficult – though both can be helped by the stable underpinnings of a solid constitution.

Bipin Adhikari is a constitutional expert based in Kathmandu.