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Report on Political Dialogue on the Challenges of Constitution Making Process in Nepal

Organised by Nepal Law Campus (NLC)

16 May 2012, Kathmandu


Background

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 offices.

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 seen.

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 forces.

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 of CA.

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 presentation.

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 the future.

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 it.

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 government.
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 Nepal lacked.

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 passed.

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 parties.

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.

Outcome

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.

Conclusion

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.

Prepared by
Abhishekh Adhikari, Advocate
Date: 5-20-2012

 
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