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Seminar Report on Building Modern State through Constitutional Process

Organised by Friedrich-Ebert-Stiftung (FES)

19-20 August, Gaur, Rauthat District


Friedrich-Ebert-Stiftung (FES) organized a two-day seminar at Gaur, district headquarters of Rautahat in Tarai, the southern flatland on August 19-20, 2010 on "Building Modern State through Constitutional Process." Inaugurating the seminar Chief Justice of District Court Giri Raj Gautam said that constitution drafting involves many dimensions. "The seminar today and tomorrow will be able to highlight those dimensions, the constraints in drafting the new constitution and way out of the deadlock in the formation of government. Three issues of fundamental importance are-consensus on the rules of the game, federalism and autonomy of judiciary. The last one is very important because the autonomy of judiciary is associated with constitutionalism, guaranteeing separation of power and fundamental rights of citizens including press freedom."

The Chairman of Administrative Court Kashi Raj Dahal speaking at the inaugural function argued that three factors underline the sources of conflict in Nepal-crisis of identity, crisis of representation and crisis of access to the institutional resources of the state for various strata of society. The mismanagement of transition in Nepal led to a protracted uncertainty of the nation's future and risked undermining the public faith in leadership. He added Nepal's politics, economy and society have to bear the brunt of this transition as it has also bred a tension between the necessity of modernity and compulsive force of tradition. Dahal underlined a number of contradictions to be addressed in post conflict Nepal.

First, despite the signing of peace accord there was no peace monitoring body to expedite the peace process in desirable direction. Second, the possibility of the formation of a national unity government has been scuttled as the rules of the political game has been shifted from consensus to majoritarian which marked the beginning of politicians jockeying for power than fulfilling their primary duty to promulgate a new constitution. The passage of each article of new constitution requires consensus which no party can command without the cooperation of other. Third, Constituent Assembly (CA) election has legitimized change but it is far from stable and institutionalized. The advent of defeated politicians in the government has undermined the legitimacy of electoral process and has weakened the power of public. Fourth, CA also failed to promulgate the constitution on May 28, 2010 instead added one more year's tenure without popular consent. There are 18 unresolved obstacles, such as federalism, forms of governance, election system, judicial autonomy, self-determination, prior use rights, etc on the way of drafting the constitution. And fifth, transitional justice remains weak as culture of impunity continues and rule of law has become difficult, corruption remains unabated and social cooperation and peace are fraying. These issues need to be rectified for undertaking any concrete national initiative.

Welcoming the participants head of Nepal office of FES Dev Raj Dahal explained about the history, philosophy and activities of his foundation and the need for building the state by increasing the loyalty and capacity of citizens. He added, "Building a constitutional state of Nepal can help institutionalize democracy, achieve political stability and foster a concept of civic culture which is both rationalist and modern." Over 138 participants including 20 women, four judges of district court, representatives of various government offices, chiefs of Armed Police and Nepal Police of the districts, election officer, heads of district political party offices, college and school teachers, students, civil society and representatives of various organizations took part in the meeting. The first day two sessions were dedicated on the principles and practice of modern constituently state and addressing various constitutional issues while second day presentation and discussion took place on "Handouts on Democracy."

Floor Discussion

Some participants asked questions while others expressed their observations including their stand on many constitutional issues which will be summarized below.

Politics Matters
Three trends can be discerned from the discussion. First, participants discussed about deteriorating national security, law and order conditions in the country due to prolonged political transition and deadlock and demanded alternative mechanism to end this standoff at the central level-formation of non-partisan government with the representatives of ex-judge, civil society and business community; concentration of three major parties in constitution making while allowing the government to be run by small parties and public pressure on parties. Second, they also opposed the discrimination of citizens between the rich and the poor by bifurcating education, health, communication and economy between public and private sphere. Third, patriotism must be fostered through civic education at various levels of society and moving politics beyond partisan domain. This can bring people for social cooperation irrespective of their political, economic, gender, regional and caste distinctions and work for common good. Shayam Sunder Patel (leader of CPN-UML) affirmed that we are grateful to FES for allowing us to debate on many issues of national importance. He said, "State should be impersonal but we have to resolve gender, class and regional concerns with a broader nationalistic perspective in mind. Institutionalization of democracy requires social transformation."

Beyond Partisan Politics
A number of participants discussed about the necessity of linking morality to politics and building national character of citizens and leaders through civic education. Exclusive partisan interest cannot contribute much to "democratic and national discipline" and enthuse a "feeling of national unity and national interest," said Chandrshwor Raut, lecturer of local Shree Juddha Campus. "Without moving beyond self interest and partisan interest politics cannot serve the people and the nation," he added. He found the solution of this problem in true human spirit of becoming selfless. Especially civil society members and educationists argued the de-politicization of education, health, bureaucracy, police, communication and production so that even ordinary citizens should also have space in it and even poor feel a stake in the nation's commonwealth and share the sovereignty. Ram Narayan, member of local civil society argued, Bahujan Hitaya, Bahujan Sukhaya, the greatest happiness of greatest number should be the cornerstone of politics in Nepal. He believed that lack of ideological convergence among the parties on the constitution and a tendency of each party to impose its own ideology created a situation of deadlock in Nepal. He referred to Prithvi Narayan Shaha as an ideal model of nation-building. Ms. Rekha Jha, Central Committee Member of National Teacher's Organization, asserted that without raising the standards of education civic capacity of citizens cannot be elevated. Partisan politics has undermined educational quality necessary to improve democratic preconditions and state building. Lal Babu Mukhiya, leader of Young Communist League, appeared critical of Tarai-based parties for not opposing external intervention in Nepali politics which is an obstacle to drafting constitution and peace process and said that UCPN (Maoist) is a patriotic party. He added, monarchists and Maoists should form a patriotic front to consolidate statehood and democracy. He also defended the role of Nepali language in national integration. "National independence requires fulfilling the basic needs of people especially food, habitat, cloth, education and health," said chairman of RPP Shailendra Singh. He also said that because of foreign intervention Nepal was declared secular state. There should be referendum on it.

Democratic Politics
"Democratic politics requires the supremacy of ballots over bullets," said C. Raut adding that democracy fosters a culture of listening and addresses every problem though a dialogue. In Nepal, however, politics of violence has emerged as a political culture and it is weakening the social fabric of Nepali society. President of Rastriya Janamoracha Nepal, Lakhinder Shah, favored unitary state, decentralization of power, Nepali language, parliamentary system and de-linking law from politics. In contrast, Central Committee Member of Tarai Madhesh Loktantrik Party Mrs Prabhasini Sing and Journalist Binaya Kumar Lal Das both opposed unitary state, Nepali language as a lingua franca, in favor of Hindi as a link language, federal autonomy for Madhesh based on self-determination and citizenship rights. But, Prabhasini added, "Reform should begin from the self." To this Das added, "Educational curricula should be democratized whereby citizens develop a sense of affinity and deference to the state." Ram Sebak Singh, district politician, added that in democracy politics is for citizenship and not citizenship for political use. He said that without the fulfillment of basic needs it would be difficult to nurture sovereign citizens capable of exercising their own choice without outside interference. He criticized NGOs as they do not foster civic education and work for the alleviation of poverty despite huge money they spend. The government should streamline their activities to national priority areas. Many participants viewed that at a time when elite standards in politics is spiraling down it is important to make democratic values, ideas and institutions vibrant to increase social trust and cooperation for the upliftment of marginalized. Jagat Pasban of Dalit Janajati Party spoke for the need to make constitution also for the poor rather than just elite domination. Social protection is the key to empower the poor and increate their interest in democratic polity.

Centrality of National Politics
"Political parties failed to include experts and competent people in the CA and, therefore, the drafting of constitution has become difficult," argued advocate Jagadish Lal Yadav. Despite four years of signing the CPA both the Nepali Army and Maoist People's Liberation Army are advertising for new recruitment. This will add an obstacle to both constitution and peace process. We should not have more than five federal states as citizens do not have financial capacity to sustain. Another lawyer Sheikh Kaimuddin defended proportional representation on the basis of population. He asked why leaders aborted 6 constitutions made by them in the past? Asok Singh Rajput argued that the centrality of politics should be national interest and education and economy should be attuned to serve this interest. Unfortunately, leaders are not patriotic and they don't think about the people working in agricultural sector, the soil is sobbing and the people helpless. He added, "Political parties should organize referendum on Hindu state, monarchy and federalism." Advocate Ragho Yadav also stressed the need for reform in political culture so that public interest should strengthen the state. Shiva Balak Mahato of Rastriya Prajatantrik Nepal observed if women, children Janajati, Madhesi and Adhibasi only think of "me first" how can the pluralist heritage of the nation be preserved. Why do we talk of group rights when they automatically come under the rubric of human rights? He demanded a national commission for the protection of culture, public trusts, temple and public lands as they shape the values for nation-building. Ms. Laxmi KC. (leader of Madhesi Jana Adhikar Forum) said that Nepali language should be the lingua franca of the nation as it has provided national identity. Men should help women come into public sphere and economic policies should address youth unemployment.

Concluding Remarks
Many participants observed that formation of a constitutional state is necessary to abolish the culture of violence into peace. Culture of listening is one way to address grievances of various groups including the armed ones and improve communication between leaders and citizens. Harmonious state-society relations requires mediating structures-public institutions, polices, access of citizens to state resources and realization of their rights. Political parties and civil society can play role in the rationalization of society if factionalism they face is mitigated. Similarly, electoral legitimacy should have primacy over others and abolish the tradition of converting defeated leaders into key decision makers. Likewise, they also demanded the transparency of the governing process. Participants also viewed that only transparent, accountable and democratic political parties should be allowed to operate as they link the bottom with the top of society and contribute to building constitutional state.

 
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