Reflection on Nepal's Constitutional
A one-day seminar organized by Tribhuvan
University Law Faculty in Kathmandu on 4 August 2013
Ritu Raj Subedi
The Rising Nepal
The United States, considered to be
the most sophisticated democracy, wrote only one constitution
that enabled the vast country to remain intact and attain unimaginable
power and prosperity. It amended the main law of land several
times to address the changing dynamisms of the society. It is
the same story with India that has been able to overcome its
various constitutional, political and social challenges through
the timely amendments to its only one constitution written through
the Constituent Assembly (CA) following the independence. South
Africa, known as the rainbow nation, healed its wounds of racial
divisions after it successfully completed the painstaking task
of statute writing under the leadership of Nelson Mandela. The
more interesting is of the UK that has no written constitution
at all but it is still hailed as a pioneer in the parliamentary
democracy in the world.
There are also the stories of the failures of constitution writing.
Many countries could not draft the constitutions through the
CA. The failures have led to the social and cultural cleavages,
and even the territorial disintegrations. Nepal has also its
disappointing experiences. Following the unsuccessful experiments
with six constitutions in the last more than six decades, we
are still in the hunt of better constitution. The years of Nepal's
constitutional trials have been annis horibiles owing to the
several factors. We are now in the throes of getting the 7th
statute through the CA-II. And the frontline actors are all
set to inject the thrusts of democratic, federal and republican
elements into it.
Who was to blame for the constitutional fiascos in the past?
Was it because of the flaws of constitution or the myopic political
leadership? This is a vexing question. In most cases, the lion
share of blame goes to the political leadership that often failed
to translate their words into action in line with the constitutional
provisions. The global experiences have shown that a vibrant
political culture and citizens' abiding loyalty to democratic
values are also crucial to the successful constitutional exercises
to prepare the ground for the durable peace, stability and economic
development. Against this background, Tribhuvan University Law
Faculty and FES, Nepal convened a gathering legal experts and
scholars together to diagnose the failure of Nepal's constitutional
practices at a seminar in Kathmandu. Initiating a new tradition,
the organizers first let the paper presenters to air their views
followed by the comments from the chief speakers and the floor.
The participants were enthused to make thought-proving comments
on the burning issues of contemporary politics.
Explore minimum consensus: Karki
As a chief speaker of the seminar, former attorney general Badri
Bahadur Karki started his speech with a wisecrack. "People
are talking about writing a constitution through the Constituent
Assembly. But, I am not hearing the term sambidhan sabha (constituent
assembly) but only sambhidhan swawa (ruin of constitution),"
Karki said in an apparent indication that that the political
parties abused and violated the constitution to suit their partisan
interests. On the inability of the CA to write the statute,
he said that it was the collective failure of the country.
Karki said that the statute could not be enforced just by writing
it. "The constitution is a document of trust and faith.
But, there is a deep-seated mistrust among the parties. The
statute works only in a society where the people value the constitutional
culture." But, a sense of mistrust runs high when it comes
to drafting the statute, he said. The parties must be clear
about the political system before they sit for writing it. "They
must be clear what kind of statute they want to write: democratic
He suggested that the parties should take the consciousness
of the people at the grass-roots into account as they brace
for the statute making. Stating that a crisis of confidence
had sapped the country, he said that the people lost their trust
in the parties. Making a dig at the technocratic government,
he said it was accountable to no one - neither to the President
nor to the people. "The value of judicial lies in its purity
but it has been now destroyed." Karki said and called for
a minimum consensus but there has been tendency to pick holes
in the already forged agreement.
Senior journalist Yuba Raj Ghimire said that the leaders often
sucked up to the foreign powers that easily found space to play
in the domestic affairs. Ghimire said that the politicians needed
to be accountable to the people and review whether they failed
constitution or vice-versa. "The parties should give up
the politics of negation and learn from the failures of statute
writing from other countries. They should try to forge a minimum
consensus and not go for writing a conditional constitution."
In another context, he said that it was height of political
dishonesty to say that BP Koirala was a republican leader. He
said that election was the integral part of democracy but independent
judiciary was equally important. "It is wrong to practice
one by destroying other." Ghimire said that India wanted
to guarantee its interests through the new constitution. All
parties should be brought to one place and struck a deal. "The
conditional agreements will not help in making the statute.
This should be drafted in a way that all the people should take
ownership," he added.
Constitutionalism requires legislative enlightenment
In his welcome speech, FES, Nepal head Dev Raj Dahal said that
of both Nepali leaders and ordinary citizens in which their
political actions can be judged and broader ownership is allowed
through public participation in the constitution and policy
making, and peace building for fulfilling their life.
Quoting Aristotle and Hegel, he said that 'society finds its
unity in the political life and organization of the state.'
"But, in Nepal this unity has now become increasingly unstable
due to the erosion of constitutional tradition of politics.
The system of nation's natural environment, society, polity
and economy is suffering from incongruity as leaders have used
contesting universal ideologies to deconstruct the historical
identity of the nation, its sovereignty rooted into popular
aspirations and fraying the state-society coherence. In the
post-conflict setting, a model of winners and losers can easily
flag the idea of social solidarity and cultural memory of national
identity construction through the formation of "we."
He said that democracy is tied to national self-determination
of citizens in all national initiatives, including politics,
constitution-making and development policies. "Unreasonable
penetration on statute drafting process and public policy in
Nepal has, however, undermined the public ownership on them.
Public policy making is the prerogative of the national parliament
as it is regarded political microcosm of national representation.
This implies that any measure to formulate laws through extra-parliamentary
means offends popular sovereignty and undermines its legal-rational
legitimacy. The demise of the Constitution of 1990 is precisely
attributed to the insertion of neo-liberal policies into liberal
constitution and its divorce from the public expectations of
Dahal, also a political scientist, offers following measures
to solve the current political problem: Firstly, by nurturing
the historically existing centripetal, integrative values and
forces of society and law-based solidarity; secondly, by increasing
the policy and program outreach of the state in the entire national
territory through strengthening of the coordination of state
institutions, political parties and non-state forces; thirdly,
by fostering overlapping interests and values and creating the
capacity of government bodies to provide necessary services
to citizens and lastly, 'reinvigorating the idea of community',
the state, through effective civic education, law-abiding habits
and ethical character of the private sector, civil society and
community organizations to resolve collective actions problems.
Holding a critical approach towards the communism and capitalism,
he said that the clash of socially and spiritually disembodied
ideologies - communism and capitalism - espoused by Nepal's
political parties and their instrumentalization to weaken the
cohesive spirit of Nepalese society embedded in syncretic culture
have aimed to transform its historical social formation into
class power opened to world markets, competition and profits
and turned history into a stellar conflict between market materialism
and dialectical materialism, gravitating towards the drivers
of geopolitical conflict to erode its golden means, the middle
Underlining the important of upcoming CA election, he noted
that the challenges before the upcoming fresh CA election lay
in the creation of election-friendly environment for the renewal
of legal-rational legitimacy of law making process, building
bridges across the gaps between the state and citizens, institutions
and aspirations of the individual.
"This requires a self-reflective learning of the leadership
about the wisdom of ordinary folk, public opinions and cultural
heritage of the nation's tolerance of diversity nurtured by
its sages, statesmen and citizens," said Dahal. "Ironically,
Nepal's political parties are locked in their own frames and
are in the loops of self-interested impulse lacking systemic
awareness for cooperative action and the necessity of middle
path for political and constitutional stability."
Hari Krishna Karki, chairman, Nepal Bar Association:
The country has been virtually plunged into chaos. It is not
the rule of law but the muscle powers are ruling the roost.
The country is in the state of statutelessness. The current
challenge is to come out from this dangerous situation. The
four parties are in a great illusion that what they say is the
constitution. They said themselves as democrats but actually
they have feudal mindset. There are certain norms and procedures
to amend the statute but they went against the basic principles
of constitution amendment and formed the Chief Justice-led government
through the 25-point Presidential fiat and moved to hold the
polls in November. An array of dissenting parties has taken
their political struggle onto the streets against the modus
operandi of the big-4 but sadly the latter wish the former may
not join the polls. They agree on dismantling the system overnight
but fail to strike a deal on the statute making. When asked
about why they violated the constitution, their readymade reply
is bad hyata (compulsion). They are not still serious about
bringing the interim constitution on the track. It is not that
the members of the dissolved CA did not write constitution.
They discharged their duty on time but the top leaders of the
big-4 did not allow them drafting it. The top leaders should
take lesson from the past. There is no alternative to CA election
in order to rid the country of constitutional vacuum. An environment
conducive to the poll should be built so that all legitimate
forces can participate in the election. For this, interim election
government chief Khil Raj Regmi should give up his judicial
position. The leaders should prove their mettle in striking
agreement amidst the disagreements but not try to find fault
with it. The socio-economic and cultural transformations of
the country should be the meeting point of all forces.
Constitution experts Krishna Belbase and Associate professor
of Nepal Law Campus Ganesh Dutta Bhatta presented their working
papers entitled 'Constituent Assembly: Experiment and Failure'
and 'Nepal's Constitutional Politics, Internal Laxity and the
Role of External Power and Consequences'.
The gist of Belbase's paper:
'Leadership was never serious for statute writing'
Drafting an inclusive constitution through the CA was primarily
the agenda of the UCPN-M. Other parties accepted it under compulsion.
The party of the former rebels should have been more responsible
and active to implement its agenda but it was driven by other
exterior motives and neglected it at the crucial moment. Other
parties were also not so serious about writing the statute through
CA because it was a compulsive alternative for them. Using the
CA for the both purpose - forming government and drafting the
constitution- badly hit statute-making process. Instead of becoming
a constructive place for the deliberation of the contents of
the future statute, it became a centre for the power politics.
Likewise, the parties sold unachievable promises to the people
before and the after the CA election. But, it became impossible
for them to include all demands of the people and agitating
groups in the new constitutions. The world's successful constitutions
have been written on the basis of compromise but the leaders
here were not ready to make any sacrifice for it. To the contrary,
they became ready to do anything to reach power. The foreign
actors poured in oodles of money and arranged foreign junkets
to the CA members with an intention to impose their agenda through
the CA. Likewise, the parties' dual roles, indifferent of top
leaders of the major parties towards the constitution writing
process and the unconstitutional verdicts of the Supreme Court
were also to blame for the demise of the CA without fulfilling
its historic task.
The political leadership never demonstrated its sincerity to
the constitution writing process and its implementation. As
a result, we are in a situation of constitutionlessness now.
We have now Interim Constitution that was written for the limited
period. However, it is not being implemented for the right purpose.
It has been wrongly interpreted. This has led to the unconstitutional
appointments in the public posts. There are lacking the bases
to examine the constitutionality of any issues. If there are
any bases, they are only two of them. Firstly, we have to accept
words or acts of office-bearers of the constitutional bodies
as constitutional just because they are in the position of responsibility.
Or each of them considers constitutional what they think or
say. Except for these, all the constitutional grounds have been
These are not positive signs. They signify that power is now
guiding the state and society and there is no room for good
judgment and people's mandate. Consequently, there is rampant
anarchy and impunity in the country. The 11-point political
agreement and 25-point presidential decree, which were introduced
to form the election government, are unconstitutional. They
are not the product of the country's necessity but of the parties'
cartel and undemocratic working style. The challenge now is
to restore the constitutionalism. For this, the constitution
should be made the basis of governance. It is only a sketch
of the people's desire. All the aspirations of the people could
not be incorporated in the statute. The continuous evolution
of constitutional values and their interpretations could only
make it perfect. The impeccability of the constitution should
be sought in its use, not in its words. The Nepalese experiment
with the CA was a complete fiasco. The main reason behind the
failure of the CA was to take it as an infallible means to resolve
all the problems of the country. To hold another CA poll is
to repeat the same mistake. This is because the parties have
not learnt from the past as seen in their quarrel in the holding
of the new CA election. Now it would have been better for the
parties to form an all-party commission and draft a brief constitution
within a short span of time, and then get it approved from the
referendum or a legislature-parliament.
Change is not everything but to consolidate it is more important.
This task can't be handled by any single party or any individual.
Where changes are possible through protest and destructive activities,
they require constructive and collaborative working manner to
institutionalize them. Unfortunately, we applied destructive
measures in both tasks. Should the parties continue this working
style, even the new constitution drafted through a compromise,
will not last long. The interim statute has been used as the
instrument of preserving the interests of the people who have
access to the power. The neo-feudalistic values have been enforced
under the garb of the slogan of co-work, consensus and collaboration.
The parties have even brownnosed the foreigners by putting the
democratic process on the backburner. What will be the use of
the constitution, written by dismantling all constitutional
values? What can one expect from the federal democracy proclaimed
at the cost nationality?
The gist of Ganesh Dutta Bhatta's paper:
External forces behind constitutional instability
It will not be exaggerated to say that the tendency among the
parties to define the politics as merely the means of grabbing
power and their inclination to work under the instructions of
foreigners for fulfilling their vested interests have been the
main factors behind the constitutional instability in Nepal.
If we study the country's written constitutional history, the
main reason behind the constitutional volatility is the external
force that wants Nepal to move on its own term. It is a common
knowledge that only a stable and prosperous Nepal could address
the security concerns of the neighbours. If one neighbour tries
to play much in the internal affairs, other neighbour will take
umbrage at the former's activities. This will not only hurt
Nepal; it can even invite confrontation between the two neighbours
and create a tension in the region.
The external elements were not happy when the internal forces
successfully wrote the 1990 constitution requiring the two-thirds
majority of House to endorse the bill relating to the distribution
of citizenship certificates and treaty with the foreign countries
on the matter of natural resources. It clearly said that sovereignty
lies with the people and they were the decisive force in the
country's development. Nepal was gradually attaining political
stability and economic prosperity through the implementation
of the democratic statute but this was indigestible to these
forces wanting instability in Nepal. So, it had become necessary
for them to finish off the political and constitutional systems
that were taking solid root. Accordingly, the Maoist insurgency
began in 2052 BS. Its main target was the parliamentary system.
The top leadership of the Maoist party made a written commitment
that it would not go against the 'critical interests' of India
in 2058 BS. Thus, the Maoists were allowed to carry out their
armed activities openly against the constitutional system founded
by the 1990 constitution from the Indian soil.
The 12-point Understanding, signed by the then CPN-M and the
Seven Party Alliance under the aegis of India, agreed in principle
to resolve the conflict through the CA polls. Its key themes
included CA poll, republicanism, secularism, one Madhes one
province, inclusiveness, and regional and ethnic identity issues.
Unfortunately, the foreign elements remained dominant right
from the beginning of the constitution writing. The issues like
rights to self-determination, one Madhes one province, secularism,
ethnic and regional identity were exported from abroad and some
politicians raised them for the cheap popularity. This created
the ground to destroy the 1990 constitution and the established
institutions that had been working for the stability of the
country. The CA was catapulted to trigger the constitutional
instability. The CA idea floated in the Nepali political market
at the behest of the external forces through the 12-point deal.
It was dissolved by the desire of the same forces. Owing to
the incompetence of the internal political leadership, the external
forces became decisive in the important aspects of domestic
affairs. The foreign interferences have increased in the extent
that the thing like choosing and removing the executive head
went out of the hand of the internal forces. In this situation,
the commitment and unity among the internal forces was essential
for the statute making process.
If the internal actors stand united and have their decisive
role in the statute making, the country will get the new constitution
and this will also serve the interests of the people. The parties
have again braced for another CA to write the constitution.
The factors that led to the demise of the previous CA will again
surface in the new CA. The same external forces will again appear
in the scene to impose their agenda through the CA. Therefore,
to make the statute making process a lesser risky venture, it
should be drafted by a team of experts and then endorsed by
two-thirds of the CA lawmakers after extensive deliberations.
This will be the safe way to write the constitution. Otherwise,
the CA will turn out a Pandora Box and the country would plunge
into another round of constitutional crisis. If the statute
is written based on consensus of the internal forces, it will
be sustainable. No matter what will be the procedures, the main
thing is the agreement among the key domestic forces. They should
move ahead by forging consensus, building trust and keeping
national interests at the centre to accomplish the historic
Comments from the floor
Dr Laxman Kumar Upadhyaya: The leaders breached the Articles
of statute and formed the CJ-led government. They are visiting
New Delhi violating the protocol. It is difficult to differentiate
between democrats and hypocrites these days.
Pawan Kumar Ojha: The statute should be drafted based
on the national capacity. Otherwise, it will not be sustainable.
What were the shortcomings of the 1990 constitution? It did
not correspond with the ground reality of the country. The parties
should build basic consensus before writing the statute. We,
all Nepalese, are now equal and we should not turn past to create
trouble in the present. All should abide by the rule of law
and use own discretion.
Lab Babu Yadav: The leaders themselves extended the term
of the CA by going against the spirit of the constitution. They
should uphold national character but they are behaving in a
biological manner and engrossed in ethnic and regional issues.
Federalism is not based on the ideology of any party and ethnicity.
They should form a constitution draft committee and get the
draft statute endorsed from the CA after the extensive deliberations
on its contents.
Dinesh Tripathy: Adherence to basic values and philosophies
is essential for the sustenance of the constitution. The interim
constitution has become weaker than the statute of an NGO. The
trust deficit is pervasive. The statute is the outcome of reasoned
negotiation process. The constitution could not be drafted until
the leaders forge consensus on basic values.
Tara Prasad Sapkota: The civil society has to shoulder
its responsibility. It should draft the statute by forming a
committee and then submit it to the CA. The leaders are not
sincere to the agreements. They often weasel out of accords
before the ink of the deal dries. For example, the 11-point
deal is a case in point.
Rameshwor Raut: The problem could not be resolved by
mincing the words. Our leaders are like quack doctors. We continue
to follow them although we know that they are prescribing us
a fake medicine.
Sindhunath Pyakurel: We should criticize the political
parties. However, there is no alternative to the parties. They
must improve themselves. There is no dispute over the agenda
of forward-looking changes. The parties need to be clear about
their agenda. The single-ethnic identity is an agenda imposed
by the foreigners. The UCPN-M is carrying it for the political
benefit. It has been bogged down in the morass of ethnic politics.
Until we bring it out of this quagmire, the country is unlikely
to get the new statute. It is better that the CA did not write
the statute under the pressure from the foreigners. The statute,
formulated at the behest of foreigners, would invite further
problems. Now there is a time to be mature for our leaders.
Rameshowr Prasad Upadhyay: There is no alternative to
the reformation of the political parties. The top leaders might
have now felt guilty for their past actions. The polls should
be held on the basis of national consensus. The civil society
members have to be united to bring the leaders on the track.
The national integrity has been hurt. Let's unite to safeguard
it. The intellectual class needs to bridge between the people
and the parties.
Shyam Kumar Bishwokarma: The country is facing problems
one after another because there is no equality. It is necessary
to make soul-searching as to why the past statutes became failure
and why the foreign intervention is growing. The rights of marginalized
must be ensured.
Padeep Kumar Rajbansi: The failure of the CA is also
the failure of the intellectual class. In the world, the intellectual
class is not divided over the political lines. But, here intellectuals
bear different political colours and fail to come together on
the matter of national interests.
Ananta Raj Poudel: Democracy and liberty should be the
inviolable part of the statute to make it workable and sustainable.
Sanju Poudel: Virtually, all institutions have been politicized.
The leaders always fail to keep their word.
Laxmi Gurung: I do not agree with the logic that the
statute should be written through a commission of experts. The
people's participation is necessary in the statute making process.
The statute is not sustainable in a country sans political culture.
The leaders are jack of all and master of none. The scholars
have their big role. They should offer their inputs to them.
Nirupama Yadav: The leaders need to develop their ability
to tackle and avoid the foreign interferences.
Laxmi Rawal: The parties adopted majaoritarian method
by leaving consensus mode of resolving the political crisis.
Sher Bahadur KC: The country has plunged into the abyss
of political crisis because the four-party leaders are acting
as supraconstitutional beings. The need of the time is to implement
the interim constitution in letter and spirit. A new political
government, including the CPN-M, MJF-Nepal and Federal Socialist
Party should be formed. It does not matter even if Regmi leads
such a government but he must leave his CJ post. All should
rise above the partisan line. It is an irony that we succeeded
to orchestrate three revolutions but now we have no constitution
Hari Shankar Chankhu: There is a constitutional vacuum.
We should draft the new statute with the participation of all
parties. It must be based on the people's verdict. The statute,
written under the guidance and interference of the foreigners,
could not be operable. We must keep vigil on the intervention
of external elements.
Bidhya Kishor Ray: We have landed in a very difficult
situation. Based on the rule of law, all should move ahead for
the forward-looking changes in the country.
- The constitution is a document of trust
and faith, and it requires the democratic culture to be properly
functional and sustainable,
- A committee of experts should draft the
constitution and gets it endorsed from the CA or referendum,
- Constitutionalism requires legislative
enlightenment of both Nepali leaders and ordinary citizens,
- The clash between capitalism and communism
led to a stellar conflict between market materialism and dialectical
materialism, gravitating towards the drivers of geopolitical
conflict to erode its golden means, the middle way,
- It is not the rule of law but the muscle
powers are ruling the roost, pushing the country into the
statutelessness and the spirit of independence judiciary has
- The country has plunged into the abyss
of political crisis because the four-party leaders are acting
as supra-constitutional beings,
- The UCPN-M should have been more responsible
to implement its agenda of constitution making through CA
but it was driven by other exterior motives and neglected
it at the crucial moment,
- The main reason behind the failure of the
CA was to take it as panacea to resolve all the problems of
- The external forces want Nepal to move
on their own terms, creating series of constitutional fiascos,
- The Maoists were allowed to carry out their
armed activities openly from the Indian soil against the constitutional
system founded by the 1990 constitution after it pledged not
to harm its critical interests,
- The statute, written under the guidance
and interference of the foreigners, could not be sustainable