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Reflection on Nepal's Constitutional Process

A one-day seminar organized by Tribhuvan University Law Faculty in Kathmandu on 4 August 2013

Ritu Raj Subedi
Associate Editor
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 and communist."

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 social justice."

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 way.

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.

Working Papers

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 destroyed.

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 task.

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 at hand.

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 been destroyed,
  • 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 country,
  • 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
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