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Defining the Options for the Resolution of Constitutional Issues

Seminar jointly organized by Faculty of Law, Tribhuvan University and FES, Nepal office

15 November 2014, Kathmandu

Prepared by Ritu Raj Subedi

The second Constituent Assembly (CA) has also struck out. It could not deliver the new statute within its self-imposed deadline. This has exposed the soft underbelly of Nepali politics. The endless dispute over the key contents of the statute has sapped the ability of the political parties to churn out an amicable solution. Like the first CA, the second is also being weighed down by the same disagreement, i.e. what should be the name and boundary of the new provinces. The parties are within an ace of forging consensus on other major issues of statute- electoral system, judiciary and the form of government but held their substantive disagreement on the nature of federalism. There is no row whether or not federalism should be adopted although a small chunk of parties and opinion makers have serious reservation about it. They contest that the CA did not observe due procedure to turn Nepal into a federal state.

Striking a win-win deal on federalism and other vital statute's contents remains an uphill task. Sorting out the federal riddle through the rigmarole of consensual process looks next to impossible. There may be practical compromise on these matters but the parties have no right to hurt sovereignty in the name of consensus or while agreeing for an implicit quid pro quo (the give and take) policy. Sovereignty is a notion that can neither be divided nor be reduced. It is only the people that hold sovereignty and exercise it periodically to renew the democratic polity. Therefore, the rope of federalism cannot be stretched to extent that the nation should compromise on the territorial integrity to restructure itself into the federal set-up.

The inter-party bickering has made an inordinate delay in solving the contested subjects. Realizing that the academics and experts have to play their proactive role in ironing out the thorny constitutional issues, the Faculty of Law, Tribhuvan University and FES, Nepal office convened an one-day seminar 'Defining Options for the Resolution of Constitutional Issues,' in Kathmandu that brought constitution experts and other informed people to debate and provide their inputs on the given topics.

Many of them argued that it was wrong to cram everything in it. "It is a prescriptive document, not the descriptive one," they said. They showed a mood of cautious optimism about the chance of statute writing, citing that the moderate forces commanded a clear two-thirds majority in the second CA and this could create a decisive moment to get the national charter through a democratic procedure should the consensual efforts come a gutser.

Opening Session

Constitution expert Bipin Adhikari said that unlike the past, the country was not in a political volatility as the ruling parties had presented their joint proposal on the contents of the new constitution. "With the ruling parties commanding two-thirds majority, they stand to materialize the people's desires for changes. However, they should demonstrate their flexibility on the demarcations of the new provinces in order to address the concerns of Janajatis and Madhesis. The parties should opt for consensus for writing the new constitution but the CA should not be made a captive of indecisions in the name of consensus, he said and added that while going for drastic changes, the country's culture and tradition could not be overlooked. "The changes should be synchronized with the local values and norms."

Constitution expert Bhimarjun Acharya said that nowhere in the world was the statute written in consensus. "It is a prescriptive document, not a descriptive one and no one should harbour illusion that constitution is a panacea to all problems," he added. Acharya offered his iconoclastic views that federalism did not suit the diverse society like Nepal. The experiences as well as examples have shown that federalism has paved the way for disintegration, he argued. "Federalism is merely a nostrum and hardly guarantees to solve the ills facing the nation in transition."

FES Programme Officer CD Bhatta said that internal and external factors are responsible for the long-winded transition in Nepal. Quoting Francis Fukuyama, Bhatta said that democracy was also a cultural phenomenon and it needed to be integrated with local values. "It is a matter of discretion as to how much the universal and local values should be blended to make our democratic system functional and vibrant."

Stating that the political parties lacked their vision about the model of multiparty democracy, he said that they were following the market fundamentalism and communism simultaneously, which the West had already given up. He also quoted former US Foreign Secretary Henry Kissinger to highlight the diplomatic acumen of late king Mahendra.
"In his latest book, the former US diplomat Kissinger has appreciated Mahendra's diplomatic ability that enabled him to preserve the sovereignty and integrity of Nepal that is sandwiched between the two giants of Asia - India and China- during the period of the Cold War that was in its culmination," said Bhatta.

Legal expert Tika Ram Bhattarai said that the country was not going to write a good constitution but one based on consensus. "No any party can retract from federalism, secularism and republican set-up. But, what we need to do is to devise a federal structure that is less damaging to the nation," he said. He said that there was no effort to define federalism from economic perspective and how to make it a viable means of lifting the people out of poverty.

Political analyst Kumar Regmi said that those, who were raising the issues of nationalism and national interests were dubbed as regressive elements. "The fact is that no one can stop the wind of change. But, those, who are acting as the foreign stooge, have claimed to be the agent of changes. The ethnic federalism does not fit for Nepal as it is divisive and tends to weaken the sovereignty of nation in the long run," he said.

Discussion Sessions

Associate professor Ganesh Dutta Bhatta presented his working paper entitled 'The Bases of Constitutional Stability'. In the paper, Bhatta said the primary duty of the parties endorsed from the election is to draft the constitution based on democratic values and create the situation for the political stability and economic development. The parties and their leaders have to rise above the tendency of exploiting the contents of statute to serve their strategic interests. They should be guided by democratic norms, values and spirit so that the nation will have the new constitution.

Professor Krishna Belbase presented 'The Constitution Making in Nepal: Tendency and Outcomes'. In the paper, Belbase argues that the statute writing process was in a trap between status quoists and anarchists, putting the historic gains such as federalism, secularism and republican set-up at stake. "We require constitutional behaviours to write the statute but the parties are lacking in it."

The gist of Ganesh Dutta Bhatta's paper

The Nepali state has not been so weak and hapless as it is now owing to the competition among the domestic political parties that run the internal politics as per the external interests. The nation is heading for uncertainty and dilemma because of the tendency to accept others' instruction as decisive in setting the agendas of changes. The propensity to fulfill the vested political interests by belittling the constitutional values and norms in the name of revolution and changes has compelled the nation to divest of its own cherished the constitutional norms. Owing to the lack confidence in the parliamentary forces and their weak stance on their professed political values, the politics of violence, instability and disintegration is getting institutionalized and legitimacy.

The individuals and institutions hell-bent on promoting instability have carved their image as progressive and forward-moving forces. Nobody raise their finger at those who do politics on ethnicity and regionalism under the guise of identity and are openly active to take the nation on the path of division and disintegration. The parties elected from the second CA polls have the challenges to restore Nepal as Nepali state and nation and prepare bases to run the nation the basis of legitimate values. The primary duty of the parties endorsed from the election is to draft the constitution based on democratic values and create the situation for the political stability and economic development.

As the country is reeling under the 'controlled instability', the internal forces have to focus on strengthening the nation by incorporating the contents such as national unity, integrity, national security and stability in the new constitution. While framing the main law of land, the CA must address complains, demands and dissatisfactions of various ethnicities, marginalized classes and regions. The first goal of the statute is to empower the people and guarantee their basic rights through the stipulation of constitutional provisions. However, this does not mean to write the statute that make the common people more ambitious.

The second CA poll has given a clear mandate to the moderate political forces to write a democratic constitution. We should not go for an ambitious constitution but a practical one that the nation can afford. The Supreme Court needs to be authorized to interpret it like that of the United States. The parliamentary system suits us. It was not properly experimented in the past. It did not fail but it was made to flop. The royal takeover in 1960 and the Maoist insurgency in 1996 did not give a chance to it for better performance. We should adopt a reformed parliamentary system that will not allow any ills to discredit it as happened in the past.

The federal map needs to be drawn in a way that benefits and suits the country. It will be fatal if the federal structure is determined by focusing on a certain geographical territory. There is no good intention in the debate on fixing the number of provinces in Madhes. The ongoing discussions look like as if Madhes is not the part of Nepal. Such a one-sided debate is preparing a ground for disintegration. If the federal units are created putting Madhes at the centre, this will not help in strengthening the national unity and geographical integration. Nepal will catch the path of prosperity and unity in diversity should there be the federal structures comprising the mountains, the hills and Madhes. The geopolitical and economic conditions and availability of economic resources and mixed social structure should be taken into account while fixing the federal units. If the focus is only on the political federal structures, the original goals of federalism cannot be attained. The federal debate should be guided by the motive of establishing the Nepali identity, not the identity of any particular caste. It is better to go for federalism based on capability and multiple identities. The new constitution must have provisions that ensure justice to those castes, classes, communities and regions that were meted out injustice in the past.

There is the need for rethinking the proportional representation electoral system to ensure stability. The PR system generated many aberrations and ills. The post of nominated CA members has become a handy tool to earn money for the parties and their leaders. Nepotism has thriven in the parties as the leaders awarded the PR seats to their kith and kin. The lawmakers picked under the PR quota have failed to be responsive and accountable to the people.

No matter what methods- be it process or consensus- are adopted for the statute writing, consensus among the national forces is the indispensible condition to write the national charter. The constitution is a 'base' document for the nation building. If the people's participation in the statute-making process is secured, the statute gets the recognition as the base document. This is a reason why the process is given greater importance than the constitutional provisions while writing the statute through the CA. The constitution should be based on democratic values and strengthen the national unity and integrity. The parties and their leaders have to rise above the tendency of exploiting the contents of statute to serve their strategic interests and should be guided by democratic norms, values and spirit.

The gist of Belbase's paper

The political parties and their leaders have drawn wrath from the people for their failure to deliver on their promise of timely statute writing. Under the pretext of assisting the statute writing task, the foreign agents and agencies are again interfering with the internal affairs of the nation. It is certain that the nation will be trapped in a vicious circle of corruption, instability and anarchy for certain period. The main factor behind the obstruction in the statute writing is the lack of correct point of view on the part of parties regarding the statute. The constitution is the basis for the government functioning. It is not a perfect document but the one based on the concept of limited government. Many of its contents are developed through exercises. The parties' leaders and experts have failed to understand or accept a pertaining fact that all topics related to the state affairs and their handling cannot be incorporated within the statute. Many of them are defined or arranged in acts, laws and policies.

At the moment, the statute writing process has fallen into a trap of two extremes- status quoists and anarchists: The status quoists are not ready to listen to the footsteps of changes while the anarchists want to cram as many as unconstitutional and anti-national contents into the new constitution. Both the sides want to implement their views on the basis of their cunning logics and political haggling. They want to extend their stay in power and fulfill the vested economic interests by prolonging the statute writing process. While weakening the constitutional norms, they are working at the instigation of corrupt, anarchist and unstable elements and foreign power centres. These factors have not only delayed in the statute writing but also put the historic gains such as federalism, secularism and republican set-up at stake. The parties need to change their modus operandi and way of thinking. They sorely lack constitutional behaviour that is essential to write the statute.

The political parties have not formed their opinions on the kind of federalism that suits Nepal. Federalism is a concept that is related to the matters of power sharing and self-rule. It is a division of rights among the provinces under a sovereign state. The self-rule means the participation of the people in the decisions of issues that affect them. It is different from the notion of confederation. But, here the ultra-federalists are taking federalism in the sense of federation. Before federalism is implemented, it has been developed into a corrupt concept. Therefore, it is imperative to save federalism from the ultra-federalists.

Secularism is a means to ensure the religious right of people. Under secularism, the state does not have any official religion. It allows people to choose and practice the religion of his or her choice. But, in Nepal, the opposite is true. It has been used to create environment for conversion. It is laying ground for the religious chauvinism and discord, which can hardly generate atmosphere conducive to the statute writing.

So far adoption of republican set-up is concerned, the political leaders have not demonstrated their republican character that is vital to live up to the spirit of republicanism. They have ignored the elected bodies and are holding meetings and discussions in resorts and hotels and do not budge from their partisan stances. They play flippancy with the statute writing and are ready to sacrifice the national interests for the sake of their individual and petty interests.

The following measures are necessary to resolve the current stalemate:

  • The parties should embrace the basic attributes of constitutionalism without which the statute cannot be successful and perfect,
  • They can learn international experiences but cannot overlook the national needs,
  • Although the nation has become a laboratory for the constitution-making for the last few years, the citizens, political workers and their leaders need the constitutional education to inform them what contents should be included and what not in the national charter.
  • For a constitution to be successful, it requires a constitutional culture that largely emanates from the respect for the constitutional bodies and the rule of law.
  • There should be the wider participation of the people in the statute-making. The parties should give up their narrow-minded stances for the broader consensus.
  • The people's mandate should be the basis for the running of the state. Likewise, the structures of the judiciary should be impartial and easily accessible to all citizenry.
  • The new statute should give priority to the economic, social and cultural rights of the people and should offer no space to the divisive contents such as ethno-centric feelings, regionalism and communalism. The parties should promote national reconciliation and mutual understanding and put the transitional justice mechanisms in place.

The comments of participants

A large number of participants put forth their views at the discussion session. As most of them were from legal background, they laid emphasis on the independence of judiciary, rule of law and due democratic procedures to write the statute if the consensus bid went down the tube. They were unanimous in rejecting the ethnicity-guided federal structure, power-mongering politicians and parties and petty inter-party wrangling. They stood for adopting common identities of the people when it comes to naming and demarcating the boundaries of the new provinces. Some of them strongly criticized the PR electoral system, citing that it invited many ills to the transitional politics. "The PR system has not been successful in it objectives. The PR was introduced to bring the marginalized groups to the mainstream but it has become a handy tool for the parties and powerful factions to earn money. Any individual can buy the PR tickets if s/he has money and connection to the dominant groups in the leadership rung."

Some of them expressed their reservation about the contents of Bhatta's paper, citing that it has not given sufficient attention to the agenda of change but some other praised it for its candid analysis and critical approach towards the major political actors. The participants were of the views that the top leaders have to rise above the partisan interests and give a plausible outlet to the current stalemate. They lamented dilatory tendency and inertia of CA. "It should be the locus of the vigorous debates on the contested issues of the statute. It should not be made the hostage of the indecision of the major parties. It should go for the process if the major parties fail to strike a consensus on the statute's contents."

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