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Challenges of statute implementation & end of deadlock

One- day seminar jointly organised by Contemporary Research Centre (CRC) and FES Nepal Office

28 December 2016, Kathmandu

Prepared by Ritu Raj Subedi


The statute implementation has become a tough task as the national players have been divided over the modality of state restructuring. The rigmarole of statute amendment has put the nation through the wringer. The ruling and opposition parties are at loggerheads its contents amendment. Main opposition CPN-UML has led the protest against the government's bid to get the amendment proposal through the House. The parties should demonstrate their collective wisdom at this crucial moment as they had shown during the promulgation of the statute. Holding the three-tier polls within the timeframe set by the new national charter is a must to translate the transformative elements of statute into action. It has envisioned a welfare state, social justice and progressive system. Failing to enforce the statute pushes the nation on edge of precipice. This situation must not be allowed to emerge. The new statute is the outcome of the people's big sacrifices and struggles spanning over seven decades. The Himalayan nation is in the dire need of stability and inclusive economic growth to write its own destiny and the new statute has come into force to fulfill the aspirations of the Nepalese.

With a view to contributing to sort out the deadlock, the Contemporary Research Centre (CRC) and FES, Nepal Office organized one-day seminar entitled 'The challenges of statute implementation and end of deadlock' that sought to unleash constructive debates on the burning constitutional and political topics. Leaders from major and minor parties put up their party positions on the current issues. A total of 40 lawmakers participated in it and vigorously became engaged in the discussions fueled by the experts' stimulating papers.

CPN-UML vice-chairman Bam Dev Gautam

The constitution amendment bill was brought with the motive of harming the nation's territorial integrity. There is a conspiracy behind registering the amendment bill as it seeks to split the Terai from the hills. It is an overt attempt to foil the statute. I have been bemused by the logic that the hills should be segregated from the Terai belt at any cost. Those, who stand for a separate Terai, cannot be a Nepali. The CPN-Maoist Centre argues that Nepal has not yet become a nation. But it is a paradox that the NC has followed in footsteps of Maoist Centre. In the 4,000-year-long history, the Terai was never separated from the mountains and hills. Even ancient kings from the Terai state had the hills and mountains as parts of their state. It is up to the concerned provincial assemblies to change the boundaries of the provinces. The provinces have been entrusted with more powers than the federation. The ruling parties had forcefully pushed the bill by bypassing the main opposition, UML, which played a crucial role in writing the new constitution. In his memoir, BP Koirala has disclosed that Bhadrakali Mishra was inducted into his cabinet at the behest of India. Thus, the India's meddling began many decades ago.

Dev Raj Dahal, FES, Nepal Office head on 'Power of Political Networks in Nepal'.

The communication and technological revolutions have fundamentally shifted the centrality of machine politics rooted into the feudal social system, mass media, class-based political parties, mass industrial culture and national state to post-modern politics of cultural shift. The satellites, Internet, computers, televisions, smart-phones, cybernetic and information-driven globalization and networks of sub-national forces such as non-ideological and single-issue political parties, civil society, NGOs and rights-based social movement groups who gained access to the plurality of global resources and internalize global norms into their demands are the locomotives of structural shift. These factors are unraveling the linear convergence of the state, economy and citizenship in the national space and shifting to the expansion of limitless networks and relationships.

The constitution of Nepal has promised social welfare state and communicated certain standards of values. Pro-active orientation of state is, therefore, important to foster welfare production through the competitive spirit of private, public and cooperative and use technological innovation, organizational capacity and law to enforce the realization of all rights so that social life is continuously de-traditionalized for equality, improved living standards and social and national integration. Deepening of social networks of citizens and grassroots organizations have created seamless transactions and leverage for articulation. Post-conflict and post-earth recovery program is essential to rebuild social infrastructures and relationships, uplift the population at the bottom of social hierarchy and patriarchy, marginalized and care for natural environment, conflict victims, elderly and disabled persons.

In this context, a coalition of progressive and social democratic actors was needed to reclaim the state and build a strong political network to help achieve the integrity of public institutions and eliminate the toxic agents of the system, mediate the social interest, ideology and identity through the golden mean and promote good life of the citizens. Nepali people cannot achieve this goal on their own. This demands inter-generational redistribution of wealth, power and recognition and move both citizens and leaders towards maturity. They need solidarity from the state, private sector, cooperative and redemptive assistance from the international community. Network equality is needed across all the representative institutions and critical masses of change agents because it creates equality of opportunity, equal outcome and equal stake in the democratic welfare state.

Lawmaker Lalbabu Yadav

It is necessary to abandon the ethnic and regional attitude which should be replaced by the national vision and identity. It is civic nationalism that should be promoted and strengthened. The 16-point deal that brought the major forces to promulgate the new statute was the first independent agreement that the domestic players forged since the Sugauli Treaty. It ensured the 90 per cent representation of CA. When Jawaharlal Nehru announced the Indian statute, many of the dissenting leaders were behind the bars. The new charter is a document of compromise. If the leaders had gone to the people in the aftermath of the statute promulgation, many of rumours about it would have been removed. When Indian PM Narendra Modi addressed Nepal's parliament and other functions, he made no reference to the problems of Madhes. The people of Terai have been demanding that Terai region be amalgamated with the hill. In South Asia, Nepal has the most flexible provision of getting naturalised citizens. The foreigners can immediately obtain the Nepali citizenship after they marry with Nepali citizens but in India foreigners have to wait seven years to secure the naturalised citizenship. If the state becomes weak, the people will also become weak.

NP Saud, NC leader

Democracy should give space to the disgruntled voices. It is necessary to go to the polls by forging consensus among the major parties. The statute was promulgated with over 90 percent of CA members putting their signatures on it. But it is also a challenge to bring the remaining 10 per cent on board. We should retain the national character. The statute cannot be amended by bypassing the UML. The transitional provisions of the statute have mentioned to form a commission to settle the federal issue.

Kashi Raj Dahal, chairman of the Administrative Court, presented his paper 'Federalism and Constitution Implementation.' Following is the summary:

Many nations have changed amended their constitutions. The form of governance has also undergone changes. There was a wave of liberalism in the 19th century, Loktantra in the 20th century and federal liberal democracy in the 21st century. Nepa has chosen federal Loktantrik republican system. Altogether 30 nations have adopted federalism. The term 'federalism' is derived from Latin word- Foederis (bound by treaty). German philosopher Kant has defined it as 'contract, pact, treaty or convention; it implies an agreement.' It is a division of legal sovereignty between centre and federal units. There is jurisdictional allocation of authority.

"Federalism ensures both self-rule regionally and shared-rule nationally," says Daniel Elazar.

"A federal constitution legally divides power between a government for the whole country and government for parts of the country in such a way that each government is legally independent within its own sphere," says K.C. Wheare.

There are various models of federalism but mainly dualistic model, cooperative model or interlocking model, symmetric model and asymmetric model have been exercised. The centre or federation generally plays the role of regulatory, distributor, standardization and harmonization. Article 56 of Nepal's statute has clearly embraced federalism with three tiers of government- local, provincial and federal- and the distribution of their rights and powers. Federalism is a government mechanism that guarantees unity in diversity and shared rules within a self-rule. It is believed that federalism gives a sense of belonging to the people towards the governance system. Their proximity and a sense of belonging give legitimacy of the system. Law is a basis and medium of guaranteeing the legitimacy of given system. Federalism has been successful in those countries that have higher level of people's consciousness, mature political and constitutional culture and commitment to the rule of law. Federalism has come a cropper in those countries that lack a feeling of cooperation in diversity and strong economy. They saw erosion of national unity and loyalty of people. Extremism leads to division and separation. Federalism cannot survive under the threats of secession and separation. The nation has got a democratic constitution but it sorely lacked a democratic culture. The parties have indulged in power politics, only helping to prolong and complicate the transition. The political parties should take a collective decision in a wise manner. Rule of law, strong security and effective service delivery are vital in addressing the challenges arising from the federal exercise.

Comments from the floor

CPN-Maoist centre lawmaker Nisha Kumari Shah said that the state restructuring should be based on the elements of identity and capacity. All should work in the spirit of federalism. Madhes-based parties should go to the polls by extending their critical support to the statute. There is no alternative to consensus. Rajendra Chapagai said that there has been tendency of putting the cart before the horse - some parties indulge in drawing conclusion first and then sweat to find evidences of their cases. The people were not properly consulted before adopting federalism. The statute amendment issue seeks to generate bickering among the parties. Whether the parties backing the amendment bill have become pawns of foreigners? NC lawmaker Man Bahadur BK said that the country had a lot of challenges ahead to implement federalism. The three-tier poll should be held within the given timeframe. UML lawmaker Ram Chandra Shah said that parties began to protest the statute before the ink is dry. The political roadmap, unveiled by former PM KP Oli, should be implemented. The parliament has not right to change the boundaries of provinces but it is up to the provinces to have a say in it. NC lawmaker Surendra Chaudhari said that it is impossible to get meaning in absurdities. The national crisis gets resolved when the leaders sink their differences. Every issue has been seen from the binary code. The statute has a lot of absurdities. NC leader Badri Pandey said that the statute has not been written in stone. The parties should move ahead by giving up extremist views. All should respecting the principle of the separation of powers. UML lawmaker Meena Pun said that no statute in the world is acceptable to all. The contents of statute amendment are against the interest of nation. The Madhesi parties are working as per the instruction of Indian embassy. The attempt at separating the hill from the Terai is dangerous. Roshan Pokhrel said that the people are at a loss to know about the meaning and practice of hackneyed term- consensus. Gokul Prasad Dura said that the political leadership lacks vision and intellectuals should roll up their sleeves to implement the statute. Lawmaker Dil Bahadur Nepali said that the UML, as the second largest party, should not feel humiliated after it was kicked out of seat of power. Lawmaker Balbir Chaudhary said that the Madhes-based parties had insulted the 90 per cent of people's mandate by objecting to the statute. Bholanath Pokharel said that there was a problem in the mindset and CPN-MC is still behaving as if it is at war. The statute can never be all-acceptable. Talking utopian things lead the people the garden path.

From the chair, CRC chairman Ganeshman Gurung said that his organization was involved in research activities. Unity in diversity was the asset of the Nepali society, and this must not be disturbed. Our leaders have the dilatory habit of doing things. We have seen them sort out the problems at last.

 
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