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Making of Constitution of Nepal

Issue 13, March 30, 2008

By Siddhi B. Ranjitkar

Most of the major political parties agreed on that Nepal shall be a federal democratic republican state, but they differ in the number of states they opt for. The Maoists have proposed 11 states; the NWPP has proposed to rename the existing 14 zones as states; and Madheshi parties want only three states based on geographical zones such as mountains, hills and Terai (plane area). It is almost sure the country will go for a parliamentary style of governance, as major political parties have decided on it. Only a few major political parties have chosen a presidential style of governance. Almost all parties have proposed to guarantee press freedom, freedom of speech, human rights, and civil liberty and rule of law. However, only a few political parties have mentioned the ending of breaking laws with impunity and finishing off the corruption.

Nepalis are going to elect their representatives to a Constituent Assembly (CA) on April 10, 2008. The CA is for crafting a new constitution as well as for acting as a parliament for two years. So, the manifestoes of the political parties reflect the two jobs of the CA. This has confused even the legal and so-called constitutional experts, as most of them have commented on the manifestoes of political parties have been the manifestoes for parliamentary elections. However, most of the political parties correctly have presented their manifestoes both for crafting a constitution and for doing various jobs if they are voted to power.

The CA is primarily for crafting a Nepalese people’s constitution but it will be a parliament for two years, as it will elect a government, a Prime Minister, and a Head of State, and pass a new constitution and endorse the declaration of Nepal a federal democratic republic made by the Interim Legislature-parliament on December 29, 2007.

The CA will have two kinds of representatives: one directly elected by adult franchise, and another elected indirectly through the political parties. So, Nepalese voters are going to vote for 240 representatives directly and 335 indirectly through the political parties to the CA. Nepalese voters are going to vote for candidates and for the political parties in the upcoming CA election. Then, the Prime Minister will nominate 26 representatives to the CA making 601-member CA.

Political parties and independent individuals have filed their candidatures for 240 seats in the CA at the Election Commission, and have submitted their sealed-list of candidates for electing their representatives proportional to the votes they will receive.

Although the primary job of the CA is to craft a new constitution for Nepal, it also acts as a parliament for two years. Naturally, the political parties have presented their election manifestoes with the mixture of the type of a constitution they want to make and the tasks they will undertake if the voters voted them to power. So, the election is the mixture of the CA election and the parliamentary election.

Voters know the candidates for the direct election, and they know whom they are going to vote for; however, they do not know who will get elected when they vote for the political party for proportional representation. Candidates for the direct election have begun a door-to-door election campaign. The political parties have held various sorts of the election campaign including the mass meeting. However, the candidates for the proportional representation can campaign for their parties rather than for the individuals. They have the constituency of all Nepalese voters. So, they can campaign for their parties throughout Nepal.

Cadres of the rival political parties have often indulged in confrontation. The Maoists’ cadres stop the cadres of other political parties from holding an election rally and a mass meeting in the areas they think they have a hold. Other cadres particularly of the Communist Party of Nepal-Unified Marxist and Leninist (CPN-UML) fight back whereas the Nepali Congress (NC) leaders make a lot of publicity to discredit the Maoists. The NC cadres often confront with the cadres of Madheshi People’s Rights Forum in Terai, as both claim the Terai area is their hold. Recently, the NC cadres have started fighting back the Maoists’ cadres.

The NC leaders and the CPN-UML leaders as well tend to dwell on the misdeeds of the Maoists rather than presenting their logic for the voters to vote for their candidates in their speeches delivered at the election rallies. They also tend to blame the Maoists’ cadres for any criminal activities rather than asking the Home Minister to take strong actions against the criminals. Thus, they are letting the criminals to break the laws with impunity hoping to discredit the Maoists. How much such things will benefit the NC and the CPN-UML and harm the Maoists remains to be seen.

Maoists’ Chairman Prachanda repeatedly says in the election rallies and in the press conferences that his party will accept the verdict of the electors; if the election is rigged he will launch a revolution; he does not mention who is going to rig the election. So, the devil that will rig the election may be an imaginary one. However his deputy Dr. Baburam Bhattarai enjoys telling the people that if his party does not garner a majority in a CA then his party will launch another revolution different from the previous one. What sorts of the revolution will be Dr. Bhattarai does not elaborate.

The real CA will be the one that will have representation of every community no matter how small they are for crafting a new constitution that will meet the interest of all Nepalis. However, the mixed-election system devised to ensure the representation of every political party in a CA may not ensure the representation of every community in a CA. If political parties are sincere enough to make sure the representation of every community in a CA, they can do so electing members of every community through the votes they receive for proportional representation; however, these representatives will be at the mercy of the political parties rather than the communities they represent. The Prime Minister using his/her prerogative for nominating 26 representatives to the CA may nominate some of them from among the communities that miss their representation through direct or indirect election.

Nepalis want a new constitution that will meet the interest of all communities. If it does not happen then it will be difficult to sustain a lasting peace. However, the election system adopted for the CA election clearly indicates that the representatives of political parties will craft a new constitution rather than the people’s representatives, as the majority of the CA members will be the representatives of the political parties: precisely 335 indirectly elected members out of 601 members of a to-be-elected CA.

In this context it might be good to review the election manifestoes of some political parties and what the professional association says to make out what shape our future constitution will take. Major political parties have made clear the fundamental issues such as federalism and republicanism. Major political parties except the Rastriya Prajatantra Party-Nepal (RPP-N) have opted for making Nepal a republic. A few political parties such as Nepal Workers’ and Peasants’ Party, National People’s Front and so on have presented their manifestoes against a federal state. However, the Interim Legislature-parliament has already declared Nepal a federal democratic republic with the provision for the first session of the CA to endorse it.

A Nepalese lawyers’ association called Nepal Bar Association (NBA) in cooperation with the Canadian Bar Association has made a study on the state structure to be made, and come to the conclusion that the Nepal’s size does not prevent it from going to a federal structure based on social, caste, linguistic or physical characteristics. The study has revealed that Nepal has not a single dominating community of people as in China, France, Italy or Indonesia that makes it necessary to implement a unitary system; so, Nepal could be made a social, caste-based, linguistic and physical-structure-based federal state. They proposed a federal structure as of the US with the state power divided between the central and the state governments, respect to the existence of both governments, and sovereignty vested in both the central and state governments. The central government and state governments respect each other’s existence and accept formal decisions, documents, and civil laws; the restructured state provides an equal opportunity to women, Dalits, Janajatis, Madheshis, and underprivileged people following the principle of inclusion.

The Nepali Congress (NC) in its manifesto has proposed to unseat the monarchy permanently and declare the nation an independent, sovereign, democratic and federal republic at the first CA meeting. The manifesto says that the monarchy has lost its justification and relevance as it has frequently violated the democratic principles and people's rights. Other features of the NC manifesto are a multiparty democratic federal republican state, Prime Minister as the executive chief of the central government, a chief for each province and a ceremonial president as the head of the state elected through the central and provincial parliaments set up based on the linguistic, caste-cultural and religious diversity of the country. The manifesto says that people's participation and public hearing will be ensured in the constitution-making process. The new constitution will be made by the people and for the people.

The Communist Party of Nepal-Unified Marxist and Leninist (CPN-UML) proposes a ceremonial president elected by all three legislatures: two at the centre and one at the autonomous regions, Prime Minister with the executive power directly elected by the people's adult franchise, and at least a minister in the central cabinet representing the federal states. The federal state will be based on the principle of self-determination and ethnic and regional autonomy. The judiciary will be a four-tiered system: federal Supreme Court, regional high court, area court and local court.

The Communist Party of Nepal-Maoist (CPN-Maoist) has proposed a federal democratic republic with a bicameral legislature, eleven provinces and a directly elected president with executive power for a maximum of two terms in its manifesto called a commitment paper. One legislature will have an equal representation of all provinces and another will have the representatives directly elected by the adult franchise. Its commitment paper says that sovereignty and state power will be inherent in the people; supremacy of constitution, rule of law, multiparty competition, voting rights, free and fair periodical election among other tenets of democracy will prevail. Its foreign policy will be based on the principle of Panchasheel (mutual co-existence). It proposes dual citizenship for the non-resident Nepalis.

Nepal Workers' and Peasants' Party (NWPP) has proposed a directly elected president with executive powers in its election manifesto. It says that a federal democratic republican system cannot solve the problems of the working class; so, it has opted for declaring the country a socialist republic through the Constituent Assembly and enshrining the provision for the same in the new Constitution. NWPP proposes a dual citizenship: one national and another regional to curb social crimes and protect social and cultural values of a given region. It suggests turning the existing 14 zones into provinces. It envisages imposing a presidential rule in provinces suspending the provincial government and the legislature if certain activities put the national unity and territorial integrity of the nation at risk. A two-third majority of the legislatures (House of Representatives and National Assembly) at the center can impeach the president. The members of the House of Representatives and National Assembly will be lawmakers only and will not join the council of ministers.

Madheshi People’s Rights Forum (MPRF) of Upendra Yadav has proposed a presidential form of government, directly elected president with executive powers of the state. Its manifesto proposes two legislative bodies: one at the center and another at each province. Each province shall be autonomous; a directly elected chief minister shall govern the province. Autonomous provinces shall be based on the factors such as population, geography and economic possibility of each province. Each province will have its own legislature, judiciary and executive. The structure and the number of provinces are left to the experts to decide. MPRF proposes three levels of courts: the Supreme Court, provincial and district court with the supremacy of the constitution. The national security, currency, and foreign policy will be under the jurisdiction of the center.

The election manifesto of Terai Madhesh Loktantrik Party (TMLP) of Mahanta Thakur focused on ending the internal colonization and establishing an autonomous Terai Madhesh province. It foresees a democratic multiparty federal republican system with sovereignty and executive power vesting in the people, and fully autonomous provinces. The legislature will nominate a person for Prime Minister to work as the executive chief, and persons to run provinces, and elect a ceremonial president. The judiciary will have three tiers such as the Supreme Court, provincial courts and district courts. The guarantee of appointing people of different communities including Madheshis in the Nepali Army, corruption control, good governance, foreign policy based on Panchasheel (mutual co-existence) are other features mentioned in the election manifesto.

Chairman of the Federal Democratic National Forum DK Buddhist and president of the Federal Limbuwan State Council Kumar Lingden along with other leaders jointly released the Forum's manifesto. The manifesto says that it foresees a five-member presidium formed based on the consensual political principle. The joint assembly of the federal parliament and the powerful Jatiya Sabha comprising one elected representative of indigenous nationalities, Terai people, Dalits, women and the Arya communities elects the presidium. An individual holds the supreme gubernatorial post of President based on the alphabetical order following the English alphabet. The person completing the term and the remaining four whose term has not come will also be considered the members of the presidium. The party has put forward the concept of election of the Prime Minister of the country with executive powers and the Chief Ministers of the autonomous federal states through the direct electoral system. The Forum has the provision for a bicameral legislature comprising the House of Representatives with directly elected members and a powerful Jatiya Sabha comprising the representatives of the autonomous federal states and every ethnic community.

The Dalit Janajati Party (DJP) has made public its 16-point election manifesto. The six-paged manifesto has focused on the requirement of participation of people of all castes, race, and people from all the sectors in the state affairs. The party has envisioned president as the Head of State, and the federal structure based on the ethnicity, language and geography. The central parliament will elect the president; Prime Minister will be the chief of the central executive body. The foreign policy shall be based on the principles of Panchasheel (mutual co-existence). The State shall give social security and development priority to the landless, Kamaiyas, Badis, and all marginalized people. The party has emphasized on giving equal respect to Dalits, indigenous communities, Madheshis, Muslims and marginalized people in the textbooks.

People's Front Nepal (PFN) has made the provision for a president with executive power and a federal state in its election manifesto. The president will have main executive power and will be directly elected; it foresees a bicameral legislature at the centre and a unicameral one at provinces. It will end all forms of exploitation and oppression of farmers-workers, women, Dalits, ethnic groups, Madheshis-Terai dwellers, Muslim, resident of remote regions, children, disabled and helpless people.

The monarchists’ party called Rastriya Prajatantra Party-Nepal (RPP- Nepal) has made public its election manifesto stating it stands for a constitutional monarchy. It has campaigned for a constitutional monarchy and multiparty democracy that had been once the buzzwords of the so-called democrats particularly the members of the Nepali Congress Party. The RPP-Nepal has gone to the people with the slogan 'Constitutional parliamentary monarchical democracy for independent, able and prosperous Nepal'. It has fielded 207 candidates for the direct election to a CA and submitted a sealed-list of candidates for the proportional representation.

Nepal is poised to be a federal democratic republic, as the Interim Legislature-parliament has already declared it; and the soon-to-be elected CA will endorse it. The future constitution of Nepal to be crafted by the people’s representatives will reflect the aspirations of the Nepalese people for the inclusive governance ending the 240-year monopoly of the Shah dynasty on the exclusive rule in Nepal.

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