Report on Political Dialogue on the Challenges
of Constitution Making Process in Nepal
Organised by Nepal Law Campus (NLC)
16 May 2012, Kathmandu
Nepal Law Campus (NLC) with the support from
Friedrich Ebert Stiftung (F.E.S) organized an interaction program
on the topic "Political Dialogue on the Challenges of Constitution
Making Process in Nepal" on Wednesday, May 16, 2012 at
UTSAV in the heart of Kathmandu.
The interaction program was of immense importance
because of the timing of the program and the distinguished participants'
input in the program. When just around 12 days are left for
the constitution to be drafted by the Constituent Assembly after
the fourth time extension of the deadline of the CA there seemed
mixed opinions amongst the participants as to whether the CA
will be able to draft the constitution or not. There were concerns
that even if the constitution would be drafted by May 27 with
few top leaders sitting day and night will it be a legitimate
document reflecting the aspirations of the people. Would it
be a democratic constitution?
Two papers were presented on the occasion.
The first one was of Associate Professor Ganesh Datta Bhatta
on the topic "Challenges of Constitution Making Process
in Nepal" and the second was that of Justice Kashi Raj
Dahal which was entitled "Challenges of Constitution Making."
Though both topics looked similar superficially the background
from which both the speakers came from gave the forum a different
range of issues to ponder and discuss about. Associate Professor
Bhatta's paper was commented by Dr. Ram Krishna Timilsena, former
Registrar of Supreme Court and Justice Dahal's paper was commented
by Prof. Dr. Lok Raj Baral. Other distinguished personalities
made their comments and gave their suggestions as well. The
distinguished personalities present were icons in their respective
fields. They represented CA members, academic community, law
community, media community, political parties and government
The program was chaired by Campus Chief of
Nepal Law Campus Mr. Govinda Gautam. The program was well conducted
by Mr. Krishna Basyal, assistant campus chief of Nepal Law Campus
welcoming the guests and managing the interaction program.
The presentation by paper writers, commentators
and distinguished participants are given below.
Program in Detail
Dr. Dev Raj Dahal of F.E.S highlighted the
importance of the timing of the program. He talked about state,
society and politics and their history, philosophy and international
practices behind each of them. State primarily he said was made
for the preservation of interests of the weaker section of the
society. State he said "should reflect society". Quoting
Astabakra, one of the greatest philosophers of the east, he
said," All the wise think alike and thus there is peace.
All the fools think differently hence there is conflict."
According to him modern politics demands cooperation and coordination
unlike the conflict oriented binary politics that Nepal has
He showed his concern as there was a need
to resolve the issues of secularism, democracy and republicanism.
He was disappointed that with today's approach of constitution
making people lacked ownership of the process. A democratic
constitution where people are sovereign is what he stood for.
People should be made stakeholders in making democracy flourish
and claim their ownership. Common interests and dividing factors
should be scrutinized.
"There is a tension" he said,"
between individual rights versus group rights versus human rights."
To strengthen democracy there needs to be compromises made.
He showed his concern that at present the
state is weak. He was of the opinion that social diversity has
to be addressed. People and leaders should rise above community
and party interests. Aspirations of the people should be reflected
in the constitution being drafted. Dr. Dahal was for harmony
between state and society. He advocated that the state should
reflect society. "Constitution" he said, "should
steer the society and state." Law should be justifiable.
Law should be rational.
Dr. Dahal was for addressing the hot issues
of climate change in the constitution.
Associate Professor Ganesh Datta Bhatta one
of the paper writers highlighted the history of constitutions
in Nepal and the reasons for their failures.
"Constitution" he said, "delineates
the power of state". It does not let state to be tyrant.
He strongly emphasized that external and internal
interferences led to the failures of the previous constitutions
in the past. There was no effective constitution in the past.
He said that the history of constitution was clouded with the
conflict between traditionalism and modernism. The core value
is to institutionalize democracy and limited government.
The failure of 2004 B.S. constitution was because Prime Minister
Padma Shamshere quit country and Mohan Shamshere who replaced
the seat was not committed to the constitution. Also India did
not play effective role in its implementation.
The agreement between the then king and political
parties in 2007 B.S. led to Interim Government Act. Internal
conflict and political parties mistrust between themselves led
to the failure of the constitution. There was inability of the
political forces inside the country to understand the chances
the circumstances offered. There were external forces as well
which contributed to the failure of the Interim Government Act.
The 2015 constitution met with failure because
there was a tussle between traditional forces and the democratic
The 2019 B.S Constitution failed because of
the politics of economic blockade by India in the year 1989
AD and that led to the people's uprising.
The 2047 B.S. constitution which was thought
one of the best constitutions of the world failed mainly because
of the sponsored insurgency of Maoist for ten years. The actors
who had the responsibility to protect the constitution failed
to perform their duties.
Associate Professor Bhatta highlighted why
the drafting of the constitution through Constituent Assembly
was accepted. One of the main reasons he said was to give legitimacy
to the constitution through people's participation. He was of
the opinion that the concept of CA was there in the later time
of Pama Shamshere as well. Other reason he said for the acceptance
of the CA was because of the 12 point accord. He emphasized
the external and internal players' role in Nepal's acceptance
The constitutional instability Nepal is facing
is due to active influences of external forces was his analysis.
The election of CA at present has been an imported idea was
his understanding. A strong solidarity and unity between internal
forces is must for political and constitutional stability in
Nepal was his appeal.
Associate Professor Bhatta stressed on the
fact that drafting constitution through CA highlights the importance
of content as well as procedure.
Briefly talking about external influences,
future constitution, situation of the country at present, the
insincerity, weak and absence of role played by political parties
Associate Professor Bhatta concluded his informative and contextual
Dr. Ram Krishna Timilsena agreed to much of
what had already been shared at the forum. He was quick to point
out the lack of knowledge of the leaders regarding the concepts
- constitution making and constitution writing.
"Constitution" he said, "is
any nation's roadmap and long term parties' manifesto".
It is a document of solidarity. He feared that the document
might be made to serve the petty interests of the political
parties as an unholy document. Dr. Timilsena said, "For
CA to be people's representatives in the real sense it should
be beyond the opinion of four leaders who are at the helm."
The problem as seen today is lack of public participation.
It is very important for a constitution to
have content, procedure, actors and how people are addressed
in it. Dr. Timilsena lamented that there was not enough discussion
held on fiscal issues, delineation of provinces, rule of law,
constitutionalism, politics as civilization, prosperity, unity
and diversity. There has not been enough participation in deliberation
by CA members and dissenting voices are not democratized. There
has been no proper coordination between civil society and public.
Fundamental Rights which protect the interests of the weaker
people have not been amply discussed.
He showed his concern that there are over
400 acts and how will they be applied in the federal system.
He was also concerned that questions will be raised as to the
legitimacy of the new constitution as it is being negotiated
by just four leaders who are at the helm.
The trend he said in the west is though they
have rights based constitution they are duty oriented but in
the east it is duty based constitution and rights oriented people.
Concluding he said that identity issues have
surfaced more than necessary, making of the provinces has not
been scientific, fiscal issues have not been debated enough
and internal and external forces have to be taken into consideration.
He urged everyone to hope for the new constitution which reflects
the sentiments of people.
Justice Kashi Raj Dahal highlighted the reasons
why we need the constitution. "Constitution" he said,"
reflects the pain of yesterday, the present times and is the
basis of future." In the cycle of conflict we have reached
a point of reconciliation. The constitution can be the answer
to the cycle of conflict.
Justice Dahal reiterated the fact that 2047
B.S. constitution did not survive despite we thought it to be
one of the best constitutions of the world. He was of the opinion
that we should analyze the threats that led to the failure of
the 2047 B.S. (1990 AD) constitution.
"The conflict" he said, "is
directly proportional to the political space." It is determined
by whether the political space is closed or open.
"Constituent Assembly", Justice
Dahal said, "has not been able to act as a determining
factor despite the fact that it constitutes of people's representatives."
There was lack of enough debates in the CA.
The road and destination was not clear in
Nepal's context. Citing examples of India and South Africa he
said that there were more issues for them than Nepal has, even
then they were able to draft the constitution.
Justice Dahal was concerned even though constitution
will be drafted by May 27 will the document be stable.
According to him as everyone violated their
boundaries outlined by the 2047 (1990) constitution hence it
failed. This danger of boundaries being violated still exists
even in the new constitution that is being drafted.
Today's challenge he thought was to draft
a stable and long lasting constitution.
Concluding his presentation he drew attention
of the gathering to international practices, citing example
from France regarding form of governance. He also said that
Nepal's political history saw many actors but there is lack
of political culture. He laid emphasis on lack of democratic
political culture which in fact is the determining factor for
He was of the opinion that transition time
should not be extended.
Quoting Immanuel Kant he said "things
done through wisdom will be stable and force will be unstable".
He was in favor of sincerity of people and their protection.
Prof. Dr. Lok Raj Baral appreciating Justice
Kashi Raj Dahal's paper's broadness in its content said, "The
paper is not limited to constitutional legalistic but is broader".
Nepal he said is at the edge of revamping the state through
restructuring. Highlighting the philosophy for the need of state
he said the positive dimensions of state is people's welfare.
He was of the opinion that what kind of state a country needs
is an internal matter and the people of the country should decide
Nepal is in great turmoil at present. He briefly
highlighted the events that took place in Nepal where great
turmoil in the past led to change in the regime. He saw the
present crisis of strikes which paralyzed the state as the dynamics
for future integration. It showed that there has been change
in the minds of people. The demands made by marginalized sections
of the people have to be addressed and seen emphatically. He
was optimistic that Nepali political forces are able to absorb
the impact of this revolution. The political forces are still
engaged in political dialogue which reflects optimism in their
approach in dealing things at hand.
According to Prof. Baral state needs to prevail
at some situations and it is necessary. He was of the opinion
that people will definitely revolt against any tyranny of the
Raising concerned voice over caste system he said that it should
be abolished and it should be common agenda of everyone.
Prof. Baral was of the opinion that democratic
exercise in Nepal at present is huge. He stated the fact that
there is unity government. He was of the opinion that if crisis
cannot be avoided then it results in catastrophe. There has
to be relief from these difficult social, political and economic
circumstances was his analysis.
He opposed the idea that states which are
not economically viable should not be constituted. He cited
the example of India where 22 states still lack fiscal capabilities.
His solution to the problem was states need to be enabled and
it is going to be a slow process.
He seemed to be surprised at the irony that
people chose representatives through election and fear that
those representatives will be tyrants.
He brought the gathering to a roaring laughter
when he said that in Nepal jump theory of politics is ruling.
However, he was quick to make them serious and cited India's
example where slow developmental process is prevalent and which
Prof. Baral criticized severely those CA members
who went abroad on account of learning experiences of other
countries leaving all work in Nepal.
He called on the gathering that we have to
take risk somewhere and at sometime. He was referring to the
semi presidential form of government that recently had been
agreed upon by the political parties. He was of the opinion
that in Nepal no president can be ceremonial.
He said that Nepal has mixed, fractural and
conflict oriented political culture at present.
His concluding remark was there are new changes
and democracy is a culture of struggle.
Inputs from the distinguished participants
Mr. Bijay Prasad Mishra, General Secretary
of Nepal Bar Association, appealed everyone to wait and see
how things unravel in these present transitional times. He reflected
on political culture and enforcers' responsibilities.
Prof Dr. Kanak Bikram Thapa, former Dean of
Nepal Law Campus, emphasized upon how constitution will be used
and interpreted. Implementation he said is a major challenge.
He saw no substantial difference between constitutions previously
drafted and the new constitution being drafted.
He was concerned that no principles were laid
down in naming and delineating the provinces. He made the gathering
roar with laughter when he said that even the CA members might
not get a chance to look at the draft constitution.
Dr. Surya Dhungel, Constitutional Expert,
criticized the organizers for not having any female as a panelist.
Speaking on the issues he said that external forces were not
streamlined and made use of and it was very unfortunate. External
forces influence when internal forces are weak and no one can
be blamed for this was his analysis. Though making constitution
through CA necessarily meant public participation as CA members
had also to act as legislative parliament the process of constitution
making became a legislative process. He questioned the rationality
of constituting CA when all it did was legitimized the legislative
process of drafting the constitution. He thought it to be a
great mockery. The third pillar, the judiciary has definitely
checked the CA through its decisions by not allowing CA an indefinite
period of time for drafting the constitution.
Dr. Dhungel was optimistic that the constitution
will be democratic. His basis of argument was people would not
accept undemocratic constitution. He was positive that governance
process will also be democratic. He appreciated the fact that
enough rights have been guaranteed as Fundamental Rights for
the weaker sections of the society. He highlighted the challenges
of implementing and exercising constitution once it is drafted
by May 27.
Hon'ble Ek Raj Bhandari, Constituent Assembly
Member, highlighted the major events that took place after the
CA was constituted. He said that once there was a dispute in
government formation it stopped the constitution drafting process.
The dilemma he is facing he said is, "as a CA member I
cannot speak against the constitution and cannot endorse its
provisions by signing it." He was very critical as to how
the CA is working. He said that the suggestions received from
public are being sidelined and political leaders have brought
their personal views in the constitution. Even the leaders are
worried if at all their views will be incorporated in the constitution
as supreme leaders are surpassing the second generation leaders'
views to have their views in the constitution. He was concerned
that democratic method and public participation has been by
Dinesh Tripathi, Advocate, was very critical
about the achievements of the CA. He said that the constitution
making through CA has failed. There is no public participation
in making the constitution and ownership of the constitution.
He also reiterated earlier speakers saying that even CA members
have not been adequately involved in constitution making.
He was concerned that nitty-gritty of constitution
has not been looked into. There is deficit of trust between
political parties. There has not been debate in real issues.
He said that presidential system of government is against addressing
the diversity. It is formed by majority which tend to undermine
the minority and diversity. He also said that it's a mockery
who is directly elected president will be deprived of power
in the present form of governance being adopted by political
Kumar Regmi, Advocate, said that constitution
is being drafted within this last 12 days and all the excitement
and publicity has come to nothing. The process has treaded a
wrong path and there will be no democratic constitution. He
acknowledge that there is chaos and everyone must take up the
responsibility for this situation.
Dr. Gopal Dahal, Associate Professor, had
hoped that constitution drafted through CA was infallible and
he was also surprised that CA is not making the constitution.
He also reiterated earlier speakers and said that constitution
is being drafted within 10 days and he questioned how stable
will the constitution be? The issues of resources distribution,
identity and capability are vital in drafting the new constitution.
Dr. Tara Prasad Sapkota, Associate Professor
at Nepal Law Campus, highlighted the reasons why the CA failed
to make constitution in time. Political parties he said have
agendas since 2007 BS and Maoist party has its agenda from the
people's revolution. There has been extreme ideological difference.
Second reason he said was because the CA also acted as legislative
parliament. He seemed against the idea that CA members were
involved in the formation of the government. He thought resolving
issues of restructuring of state and determining forms of governance
outside CA as a positive move.
Prof. Lal Babu Yadav was concerned that opportunity
given in the name of certain identity was overshadowing the
real ability of ethnic people. He said that constitution cannot
have everything in it. He was against the idea of dividing executive
powers under two executive heads. He was of the opinion that
we should choose between either the president or the prime minister.
He told the gathering that agradhikar (pre-emptive right) and
democracy are not compatible with each other.
Prof. Dr. Ananta Poudel said that constitution
in itself was meaningless. Institutions have to make it implementable.
He said we have to move ahead in the change context. He assured
the gathering that if the present leadership did not meet our
expectations and aspirations they will have to go.
Dr. Chandra Kant Gyawali, Advocate, said that
the document being drafted by top leaders will just be an agreement
and not a constitution. He also reiterated earlier speakers
in saying that directly elected president as ceremonial and
indirectly elected prime minister as executive head is a mockery
in the exercise of democracy.
Ms. Nirupama Yadav, Advocate, suggested that
it is better if we avoided the shifting of blame attitude. At
a national level there are external forces and at ethnic level
again there are external forces and again at female caucus there
are external forces. She asked the gathering to be strong and
avoid external forces.
Mr. Rudra Sharma, Advocate, said that constitution
making process follows from crisis. Stability cannot be a pre
requisite for constitution making. External forces and influences
have to be analyzed and dissected was his opinion. Federalism
he said is not panacea of all problems. The intelligentsia of
Nepal have utterly failed in making people understand this fact
was his opinion.
Ms. Smita Sharma, a management graduate, asked
the gathering a very important question how is the expenses
being met of this constitution drafting process.
Mr. Pesal Niraula showed his concern that
we are following the path of Afghanistan.
Ms. Shraddha Bhattarai, a student of law,
said that ethnic federalism is being exercised in Somalia and
Somalia is one of the poorest countries in the world. She hoped
that we are definitely not going to follow the footsteps of
Somalia for our prosperity.
Concluding the floor discussion session one
of the representatives from law student said that federalism
is for decentralization. He talked about philosophy behind decentralization
and issues of inclusion.
Prof. Dr. Bidya Kishore Roy, Dean of Nepal
Law Campus, said that a perfect situation has not come in Nepal.
The issues of public participation remained the center of discussion
in the program. He said that CA is for betterment of society
and political parties have to understand this.
Mr. Govinda Gautam, Campus Chief of Nepal
Law Campus, said that the country definitely needs a constitution
but not in haste through few leaders. The aspirations of the
people should be reflected in the constitution and it should
be a political and national document was his closing remarks.
The forum invited distinguished personalities
of Nepal who have been contributing from different angles to
the betterment of Nepali society. In the dawn of promulgation
of the new constitution there were concerns raised as to the
legitimacy of the upcoming draft. The floor seemed divided as
to the legitimacy of the document that will hopefully be brought
into force within few weeks. The opinions of these personalities
mattered as this would give finishing touch to the document
and give legitimacy to the document.There were optimism shown
by the participants that finally they will be able to see the
document even though not enough deliberation was made by the
CA members and not adequately consulted with the public.
The constitution looks very much coming in
the next few days though severe criticism has been there regarding
the process adopted. The document that will be brought forth
will be lacking in many aspects and the issue of ownership will
be a big question when it will be implemented. There has not
been enough public consultation though the CA was formed for
the making of the constitution. The CA has been at the mercy
of the few leaders of few prominent political parties. Hence
the constitution will lack its legitimacy. The document will
be a last minute agreement between leaders of few political
parties excluding even the involvement of CA members. Issues
of importance have not been debated enough making it a weak
document from the very beginning. There are mixed opinions amongst
experts as to whether the document will be appreciated or rejected
by the people.
Abhishekh Adhikari, Advocate