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High level dialogue on Constitutional Democracy

Organised by Administrative Court of Nepal (ACN)

3 September 2010

Ritu Raj Subedi, Journalist, The Rising Nepal

Peace and constitution writing are now prime concerns of the Nepalese society. Writing a democratic and inclusive statute from the Constituent Assembly (CA) has been the political agenda of the Nepalese for the last sixty years. But, the 601-member elected CA, formed from the historic elections more than two years ago, failed to frame the new statute within the stipulated timeframe as major political parties stumbled over which party should lead the provisional government; how the peace process should be concluded and what types of the contents the new statute should incorporate. CA members are sharply divided over the interpretation of constitutional issues and implementation of the Comprehensive Peace Agreement that aim at restoring permanent peace, ending the remnants of conflict and bringing about socio-economic transformations by consolidating republican set-up and restructuring the state. Parties frittered away the most of their valuable time in toppling and forming the government. The widespread popular anxiety is that whether the continued deadlock might divide the nation and take it to the path of "failed state" with the parties being unable to write the new statute within its extended period.

Against this background, the Administrative Court, in collaboration with Friedrich-Ebert-Stiftung (FES), a German political foundation, organized a one-day seminar entitled 'Peace Process and Constitution Making' in Lalitpur on September 3, 2010. CA chairperson, Acting Chief Justice, Constitutional Committee chairperson, constitution experts, lawmakers, secretaries of various ministries, lawyers, media people and rights activities shared the forum. They sounded alarm as well expressed optimism over the prospect of new constitution. The programme, is the continuity of high-level dialogue jointly initiated by Administrative Court of Nepal and FES, was divided into two parts - opening and discussion sessions. The first session witnessed the key guests making their remarks on the current political situation.

In the second session, Nepal Rastra Bank Governor Dr. Yuv Raj Khatowada, CA's legal advisor Tek Prasad Dhungana, and Administrative Court's chairman Kashi Raj Dahal presented their working papers on the prominent agenda of peace and statute writing processes, good governance and economic challenges. An annual journal of the Administrative Court was also made public at the function.

Opening Session

Acting Chief Justice Khila Raj Regmi delivered his keynote at the inaugural function. Regmi highlighted the importance of independent judiciary in democracy. "An independent judiciary is a vital instrument to ensure justice and promote the culture of peace in the transitional society," Regmi said. He called for guaranteeing the freedom of courts in the new constitution, which he said, should reflect the genuine aspirations of the people. Without this it cannot guarantee the fundamental rights of citizens and maintain checks and balances of power which is so essential for democracy. This he said in the context of differences over the autonomy judiciary as UCPN (Maoist) is demanding the legislative control of judiciary.

CA chairman Subash Nemawang said that the crisis of confidence among the parties posed as a bigger problem in the timely execution of the peace and statute writing processes. "The current crisis occurred as the parties failed to implement the commitments they made in course of inking different agreements in the past," CA chair said. Nemwang noted that issues of army integration and the formation of government did not fall under the jurisdiction of the CA but they came as a stumbling block in the statute writing processes. He added, "trust deficit among the parties has fostered widespread cynicism among the population about the weakness of mainstream party leaders." As the consensus is the main thrust of the interim statute, the parties have no other alternative than follow the roadmap of consensus, collaboration and co-work, he said.

CA Constitutional Committee chairperson Nilambar Acharya said that political parties were the decisive players and they should demonstrated political will to resolve the deepening impasse. Parties are demonstrating leadership weakness thus leaving the nation devoid of clear vision. Acharya said that delay in the statute writing happened, as the parties did not identify the basic principles and agenda of the constitution before starting the process to this end. Presenting the causes of the current political gridlock, he said the parties were trying to settle the disputes, which require consensus for resolution, on majority basis and vice-versa. "The new constitution should accommodate all forces. It should not be a document of a single party," he said. The tendency of leaders to stand above the law has posed problem in the creation of rule of law in the country and settle all types of conflict by compromise.

Chairperson of Administrative Court Kashi Raj Dahal shed light on the objectives of the seminar and offered a set of approaches for conflict resolution and peace reinstatement.
"The peace process can't come to conclusion if the peace accord is not sincerely implemented by the contracting parties and transitional government is not run on the basis of inter-party consensus," he said. He called for transitional justice to heal the wound of conflict, strong mechanism to monitor the implementation of the peace agreement which at the moment is missing and socio-economic transformation to address the expectation of the people in the post-conflict society.

Paper Presentation and Discussion Session

Former speaker Daman Nath Dhungana chaired the discussion session. Holding a critical attitude towards the political parties, Dhungana suggested that the parties should seek the President's support to solve the crisis if they could not do so from the parliament. He also asked CA chair Nemwang to take decisive initiatives to forge consensus among the parties. "By just chanting consensus, it can't be found unless common ground is discovered and real negotiation takes place for the compromise of interest. One must pursue serious endeavor for this," said Dhungana in an apparent reference of the frequent appeal of CA chair for consensus. "No one should go beyond the spirit of constitution. To revive the consensual politics, we should return to the original text of the interim constitution that makes consensus as a mandatory for the parties in handling the affairs of the transitional affairs. He also blamed the leaders for opening space for extra-constitutional mode of conflict resolution and weakening the function of parliament. Dhungana noted that the CA was created to realize the achievements of the April Movement. "It must stay there until the two historic goals - peace and constitution are attained."

In his working paper entitled 'Challenges and Opportunities of Nepal's Economic Development in the Context of Governance,' Central Bank's chief Yuv Raj Khatiwada said that the new constitution should clearly spell out economic provisions to ensure good governance, corruption-free society, economic growth and investment, and equitable distribution of national income and resources. "The constitution should categorize corruption as a serious crime and arrange harsher punishment to the corrupt," he said. Khatiwada said that the political system, which could not fulfill the basic needs of the people, would not survive for long time. The study has shown that there is link between the per capita income and the durability of democracy, he said. Quoting the findings of a study, he said for democracy to function, the people must have 6,000 USD per capita income and democratic system can't sustain for more than 8 years in the country where the people have less than 1,000 USD annual income.

Khatiwada pointed out the need to launch debate on the kind of welfare state Nepal could emulate in future. With its limited income and resources, Nepal could not the follow the concept of welfare state practiced by Scandinavian and some developed countries where public tax contributes up to 50 per cent in the total GDP. In contrast, it is hardly 10 per cent of contribution from taxpayers in Nepalese GDP. "In such a situation, it is not practical to blindly copy other egalitarian states." He said, 'We should lay out socialism-oriented economic system and welfare state that suit to Nepal's social and economic conditions." Stating that the media could play an important role to promote good governance, Khatiwada stressed on strengthening monitoring mechanism and legal provisions to check irregularities taken place within the consumers groups. Transparency is the key democratic process of governance.

He asked the political parties and lawmakers to define the status of central bank in the federal set-up. He also sought clarity in the distribution of the rights and responsibilities among the centre, provinces and local bodies in the use and mobilization of resources and incomes under federalism.

Presenting hi working paper 'The Present Status of Constitution Building in Nepal: Opportunities and Challenges,' Tek Prasad Dhungana, CA legal advisor, informed about the progress made in the statute writing processes and the remaining tasks to be completed. The Constitutional Committee has been assigned to prepare the first draft of the constitution by integrating the suggestions of all 11 reports. The first draft should be taken to people to collect their opinions and then the Bill of Constitution is prepared after necessary revisions on it. Then after, the lawmakers discuss it clause-wise and endorse it with amendment. The President issue the new constitution after it is certified by the CA chair following the signature of all lawmakers on it. The CA has so far endorsed the reports of only three out of 11 thematic committees till the date. Dhungana noted that the parties are still split on many of the contents of the constitution as they began the constitution writing processes without forging consensus on its basic principles.

"The statute writing processes were also disrupted as the misunderstanding grew among the parties on the army integration and the formation of the government," he said. According to Dhungana, the parties agreed on 18 points and differed on 22 points relating to contents of the statute. "There is no dispute that the new constitution will be inclusive, loktantrik, republic and of federal nature. The parties also agreed to slash the country into three units - centre, province and local government - based on shared rule and self-rule but they have been unable to determine the name, number and demarcation of the federal states," he said. In addition, the issues such as the nature of governance, the formation of the cabinet, whether it will be presidential or prime ministerial system, whether the judiciary will be free or be under the legislature, the right to self-determination, the nature of the federal legislative, whether there should political prerogative and which should be the official language of the country, among others, are yet to be settled.

"The unsettled issues are complex and time-consuming. The process for the statute writing has not begun even after the three months of the extension of CA's term on May 28," he said and added that the parties have undermined the basic procedures and public participation in this process. "They need to conduct mutual discussion to find common ground to sort out differences so that they will draw the basic outline of the new statute."
He expressed his optimism over the prospect of the new statute. He said that the CA prepared concept papers and initial draft of the new statute and the international community is cooperating with it. "Despite the erosion in the confidence of lawmakers and legitimacy of the CA, the CA that represents all classes, regions and communities still exists. We have democratic procedures and viable mechanism needed for constitution writing," he said.

Dahal's paper 'Peace Process and Constitution Building,' offers a conceptual framework for conflict resolution and ponders over the challenges and opportunities of constitution building.

Based on the international experiences on the conflict management, Dahal put forward seven points as laying the basis for the restoration of durable peace in the country:

  • The state and rebel party should strike a peace agreement and abide by its spirit sincerely,
  • The government should be formed and run based on consensus in line with the power-sharing principle applicable for the management of transition period,
  • In order to grant legitimacy to the new political forces, elections should be held for fresh mandate as post-conflict election legitimizes the politics represented by new class,
  • The new statute should be drafted to operate the political system based on the supremacy of constitution by consolidating the achievements of the democratic movements,
  • Rule of law must be maintained to promote law-abiding culture and civilization,
  • There should be transitional justice to compensate the conflict victims and mitigate the woes of wars, and
  • The country must carry out economic development and reconstruction to meet the rising expectations of the people in the post-conflict society.

"For sustainable peace," Dahal, "said, "there should be meaningful dialogue between the conflicting parties and the needed infrastructures and mechanism in place to promote peace, create conducive atmosphere for the integration and guarantee of security in the transition period." However, the peace and statute writing processes were disrupted in the dearth of culture of consensus, which the parties pursued since Janandolan - II but abandoned following the CA's election, he said. Dahal noted that the CPA, signed by the then government and the Maoists some four years ago, has not been sincerely implemented. The CPA has envisaged several important mechanisms such as National Peace and Reconstruction Commission, High-Level Truth and Reconciliation and State Restructuring Commission but they have not been formed till the date. Dahal said it seemed no one was taking ownership of the CPA, as there was not special mechanism to monitor its implementation. "The CPA has been now left uncared for." He suggested for constituting a parliamentary committee to monitor the peace process and forming a unity government based on consensus to settle the contentious issues of the statute. Dahal said that it was the political leadership that draws the outline of the statute and "we, legal experts, will only add a rhythm to it." He said that extension of the CA's tenure by a year is tantamount to the showing of yellow card to the parties by the people. "If the parties fail to write the new statute within the extended period, the people will be compelled to show a red card to them."

Comments from the Floor

From the floor came the volley of comments and suggestions on the three working papers. Most of the commentators appreciated the papers saying that they were appropriate in the present context and the paper writers must have worked hard to prepare them. They form a part of public communication. Some of them also drew their attention to the shortcomings in their papers. A participant asked Governor Dr. Khatiwada to carry out study on the black money and its impact on the national economy. Government lawyer Yuv Raj Subedi said while writing the provisions relating to the people's fundamental rights in the new constitution, the parties should also keep the state's capacity into account. "The statute should not include the ambitious contents in the fundamental rights." He also demanded with Tek Prasad Dhungana to clarify the term 'democratization of the Nepal Army mentioned in the latter's paper.'

CA member Khim Lal Devkota rued that there were efforts to weaken the CPA rather than to strengthen and implement it. "The statute writing procedures are not being duly followed. If the CA and the parliament were separated from each other, the statute writing process moved on smooth course," he said. He also hinted at the incompetence of lawmakers, many of whom, according to him, were ignorant of the basic rules, regulation and procedures of the CA. He also said that few persons who are powerful do not know about the constitutional process and never take part but they are crucial for the finalization of constitution. He also said that actors of peace process have changed. They need to be taken into account.

Nepal Sadbahawana Party (Anandidevi) chairperson and CA member Sarita Giri said that CA should recruit advisors and create independence bodies to advise the parties and sort out differences among them. "If we follow the procedure, it will not be difficult to form the state restructuring committee," Giri said. She said the Maoists were hesitating to embrace the concept of pluralism and Nepali Congress and CPN-UML were reluctant to accept federalism. "This sort of hesitation on the part of the major parties posed a challenge to the peace and statute writing processes."

A woman lawyer Niru Shrestha said that CA was going to incorporate the people's rights to health, education, job, food and residence in the new statute. "But the pertinent question is - will the country's economy could meet them?" She also called for paying attention to the plight of the single women.

Lal Babu Yadav, a professor of political science in TU, said, "We are at the risk of losing national identity as we are putting the ethnic, communal and regional issues above the national agenda. We are first Nepali. Then, only we are Madhesi, Pahade, Newar, Tharu and so on." Yadav said that political development without economic prosperity was a myth. He also urged the lawmakers whether the country should adopt US's competitive economic model or Germany's cooperative model. He also pointed the paradox of parties as they talk about the democratization of Nepal Army while militarizing themselves and eroding the outreach of state in society for governance.

Tana Gautam of National Vigilance Center said the typical Nepali political culture of focusing too much on politics and too less on economics which is a basis of sustaining the system. He also talked about the need to devolve power to the people at the grassroots level.

Another speaker said that when CA member itself is caught in bribe how can we make constitutional politics stable and how can we make public administration neutral.

Bhesh Raj Sharma pointed that so long as political parties interpret all the agreements from 12-point to peace accord it would be difficult to harmonize the ends and means. He said that civil society should take active initiatives to break the current deadlock and work for a compromise among the parties so that national initiatives can take momentum of their own.

CA member Gopal Singh Bohara asked can not Supreme Court take a decision when constitutional spirits are trampled? Citizens and civil society should work together to break the political culture of leadership orientation and build institutional culture of democracy.

Lawyer Rudra Raj Sharma argued that the speaker of CA should take initiative to break the deadlock based on shared interest of parties and exert pressure on them who does not comply.

Journalist Chiranjibi Khanal asked to the governor whether the problem of liquidity ended? If not how the lending rate can be reduced?

Journalist Hasta Gurung argued that the problem is not whether constitution is drafted the real problem is whether it will be democratic. He pointed the monopolist tendency of parties and CA members to perpetuate power without accountability.

Former Chief Secretary Dipendra Purush Dhakal feared that the constitution may come from outside. The economic indicators show that Nepal is increasing bordering on failure but there is no discussion about this. We have to discuss about the distribution of resource balance under the scheme of federalism.

Dr. Lalan Chaudhary pointed that priority should be given to agriculture sector to stem the food crisis, migration of youth abroad and linkage of agriculture with industry and trade. He also said that political leaders need proper socialization through civic education at all the levels so that they think peace can be achieved by peaceful means and not violence.


Participants found the seminar useful to bring diverse actors of society and motivated them to focus on national questions without prejudiced. The constitution and peace process are at the cross-road. The major parties are preoccupied in the making and breaking the government. There is urgency to end crisis of confidence among the major stakeholders of the peace process. As CC chair Nilambar Acharya said, it is high time the parties demonstrated their political will to shun their parochial attitude and rigid stances. They should revive the spirit of consensual politics that they upheld until the CA election. They must come together to write a pro-people constitution. There is no alternative to it. Failing to do so means the collapse of the homegrown peace process that the world has described as exemplary. The governor of Nepal Rastra Bank said that our economy should be oriented to socialism so that state capacity can be increased for welfare distribution. Chairman of Administrative Kashi Raj Dahal pointed the need to develop a culture of constitutionalism and rule-based governance so that the state, economic institutions and civil society can capture of synergy of development.

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