Defining the Options for the Resolution of
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
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.
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
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
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,"
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
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
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
- 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
- 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.
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
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