High level dialogue on Constitutional Democracy
Organised by Administrative Court of Nepal
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
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.
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,"
Dahal's paper 'Peace Process and Constitution
Building,' offers a conceptual framework for conflict resolution
and ponders over the challenges and opportunities of constitution
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,
- 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
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
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
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
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.