By Hari Phuyal
September 18, 2015
After years of debate, Nepal is celebrating a new constitution. Out of the 598 members of the Constituent Assembly, 507 voted for the new constitution, 25 voted against, and 66 abstained in a vote on September 16, 2015. Some small parties of the Tharu and Madhesi ethnic communities organized protests against the constitution, leading to widespread violence in southern Nepal. More than 40 have people died in the violence, half of whom were members of Nepal’s Police and Armed Police Force.
President Ram Baran Yadav will promulgate the new constitution on September 20, 2015 in a ceremony expected to be attended by members of parliament, Cabinet members, members of constitutional bodies, high ranking officers of Nepal’s security forces, and members of the diplomatic community. Once the constitution is promulgated, Nepal will have completed a 65-year-old quest.
The Constitution’s Principles
The new constitution embraces the principles of republicanism, federalism, secularism, and inclusiveness.
The Interim Constitution of 2007 ended the monarchy and made Nepal a republic, but this constitution finally ended the chances of a monarchical revival. The constitution passed despite diplomatic efforts by former King Gyanendra Shah, who visited India last month.
Under the constitution, Nepal’s new federal structure will see the country divided into seven provinces, with clear lists of legislative powers for the central, provincial, and local bodies. The Tharu and Madhesi groups had contended that provinces should be demarcated based on the concentration of ethnic populations, which are spread east to west in the southern part of the country. The three major parties, the Nepali Congress (NC), Communist Party of Nepal (Unified Marxist-Leninist) (CPN-UML), and the United Communist Party of Nepal (Maoist) (CPN-M), objected to this idea, arguing that fulfilling such a demand would cause other protests and violence demanding still more ethnically-based provinces.
The country with the largest Hindu majority will continue to be a secular state with a special definition of the term: “respecting pre-historic traditions and religious and cultural freedoms.” Hindu fundamentalists hosted protests against secularism until the end. They expressed dissatisfaction both to India — which some Hindu groups thought would intervene at the last minute to make Nepal a Hindu state — and to leaders of the main three political parties.
The other main characteristic of the new constitution is inclusiveness. The existing state structure is dominated by one particular community; others are deprived proportional representation, including in the elected bodies, in the current unitary structure. Changes to this structure began in 2007 with the promulgation of the Interim Constitution and the new constitution emphasize the continuation of inclusivity, keeping in mind the rights of women, the disabled, sexual minorities, and other similar groups.
Tharu and Madhesi critics demanded that the constituencies of the Legislative-Parliament be divided on the basis of population alone. Nepal’s three main parties denied this request, stating that representation must be based on both population and geography, in order to include the vast hilly and mountainous areas that have a low population density. Their proposal is that, of the 165 directly-elected seats in the Legislative-Parliament, one seat will belong to each of the 75 districts and the remaining 90 will be divided based on population. The other 110 seats of the Legislative-Parliament, which will have a total of 275 seats, will come from the proportional votes to the parties and should grant priority to women, the Janajati and Madhesi ethnic groups, and other marginalized communities.
The new constitution also provides a long list of fundamental rights, including economic, social and cultural rights, with the possibility of progressive realization. These rights can be claimed at the provincial high court and district courts as part of the right to remedy. Further, after popular demands from marginalized communities, specific constitutional commissions (such as the Women Commission, Dalit Commission, Janajati Commission, Madhesi Commission, Tharu Commission and Muslim Commission) were created along with the National Human Rights Commission. These commissions have a mandate to receive complaints or recommend changes in the laws, policies, and practices of areas that discriminate against or deny rights to their respective communities.
The last minute changes in the citizenship provisions authorizes women to confer citizenship to their children, on par with men, but women groups and the Madhesi community still argue that further change is necessary lest the provisions make women “second class” citizens. The main three parties argue that the geopolitical situation, and the large populations of neighboring countries India and China, compels them to restrict “unwanted population growth.”
Political In-fighting
The successful vote to adopt a constitution ends a seven-year legislative process. The first Constituent Assembly, elected in 2008, failed to deliver a constitution in 2012 as its tenure expired. The Supreme Court did not allow an extension, and the second Constituent Assembly was elected in 2013. That assembly had already passed an unofficial one-year deadline for delivering a constitution, due to major contentions among the main three parties.
In June, a 16-Point Understanding was forged among the four major parties, the NC, CPN-UML, CPN-M, and the Madhesi Janadhikar Forum (Democratic). The latter party, which has a predominantly Tharu base, has since absented the Constituent Assembly process, citing differences in the demarcation of Nepal’s provinces. The main three parties are reportedly working with Madhesi Janadhikar Forum (Democratic) leader Bijaya Gachhadar and other Tharu organizations to bring them back to the mainstream. In particular, they have offered to address some of the Tharu demands in the first amendment to the new constitution.
So far, the three main parties have made no such efforts to reach out to Madhesi leaders, despite an call for more dialogue from Sushma Swaraj, India’s external affairs minister, on September 14 and several comments by the Indian ambassador to Nepal, Ranjit Ray. However, India, the United States, and the United Kingdom have officially welcomed the process, pretending that Nepal’s new constitution will be inclusive to all.
The three main parties argue that it may be entirely impossible to include all aspirations from all groups at this moment. Any delay in the process might cause differences within the main three political parties and thus potentially threaten the republic.
Nepal’s New Government
Under the new constitution, Nepal will have a parliamentary form of government with a president elected by a collegium of both central legislative houses, the Legislative-Parliament and the National Assembly, as well as the provincial legislative body. The prime minister will be elected by the Legislative-Parliament based on a majority. The Constitutional Council will nominate the chief justice and head and members of the constitutional commissions. The Judicial Council nominates the judges of the Supreme, High, and District Courts; the judicial system is an integrated one.
Despite public consultations, both on the preliminary text and after adopting the draft constitution, most of the provisions are carried forward from the previous constitutions that Nepal had — six of them (not counting the new constitution) since 1950. Some of the basic features of federalism were incorporated and most of the ideals of the parties – from the right to the extreme left — are incorporated in the preamble and directive principles of state policies. Now the verbal battle of the main three parties will be over how to interpret “socialism based on democratic values.”
The future of Nepal’s new constitution depends on how the main three parties include the Tharu and Madhesi parties in the mainstream by offering amendments after the promulgation of the constitution. In terms of amendment, the new constitution is flexible, as a two-thirds majority can amend any issues except sovereignty. The success of the constitution will also depend on how Nepal handles the legitimate concerns of its two big neighbors, India and China.
The success of this constitution will also be judged on how the new government carries out continued reconstruction after the April 2015 earthquake, and how it tackles the extreme poverty experienced by the vast rural population. The leadership will have to decided how to handle the agendas and activities of both the extreme right and left.
Hari Phuyal is an an advocate in the Supreme Court of Nepal.
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