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Constitutional Approach to Nation Building

One-day seminar organised by Martyr Memorial Foundation (MMF)

14 April 2016, Kathmandu

Prepared by Ritu Raj Subedi

With much humming and hawing, the nation has received the new constitution in 2014, which is the 7th in its constitutional history. Writing and dumping the constitution had occurred in succession in the last over 70 years. There has been tendency to weaken the statute before it is effectively implemented. Even the new charter has not received full ownership of the people although it bears the stamp of the overwhelming support of the Constituent Assembly members. The dispute raised by a small section of political parties over some of its contents threatens to overshadow its progressive elements aimed at creating an egalitarian society through fair distribution of national wealth, social justice and inclusive growth. It has envisioned steering the nation on the path of socialism. It has guaranteed the citizens' fundamental rights to health, education and employment, thus setting a milestone in the constitutional evolution of the country. It has embraced the basic values of democracy, human rights and pluralism. It boasts of the world's one of the best national charters written by the elected CA.

Nepal is in the slow economic lane not because of the dearth of the constitution. It saw many constitutions. It is the lack of strong political will and honesty, chronic instability, insufficient democratic institutions and enabling structures that precluded it from achieving prosperity and durable peace. The lack of active citizenship and civic education also led to the current plight of the state. Now, with the 'most inclusive and democratic constitution' at our disposal, there should not be any delay or pretext to apply it in practice. It provides the robust constitutional lens and tool to see and resolve the burning problems of the Nepali society. It institutionalises all political feats gained through the numerous struggles and movements. It requires commitment, vision and will power from all stakeholders to ensure its real praxis. This idea strongly resonated with the experts and participants at a national 'Constitutional Approach to Nation Building' jointly organized by the Martyr Memorial Foundation (MMF) and FES, Nepal office. They voiced for pooling adequate resources to carry out the socio-economic transformations as envisaged in the new statute. Divided into opening and discussion sessions, the seminar hashed out on the various themes of constitution. The views of the attending leaders, experts and audience are as follows:

Bimalendra Nidhi, Nepali Congress leader

  1. The NC will not backtrack from secularism, republican set-up, federalism and inclusive provisions enshrined in the new statute. It will plug away at implementing them. Anyone, who stands against these provisions, will finally disappear from the political scene.
  2. If we believe in democratic socialism, we need to be secular. Religion is the private affairs of individuals and the state should not intervene in it. There will be a paradox if we follow the old system on one hand and adopt the new technology on the other.
  3. All should have ownership of the new statute that institutionalises the historic gains such as republican set-up, federalism and inclusion.
  4. Federalism is itself a democratic model of governance but some section of intellectuals still suffers from illusions whether it breaks the nation. The national parties should be serious about addressing the problems of Terai. Otherwise the chasm between Terai and the capital will increase.
  5. The Upper House should have the representations as per the population.

Dhundi Raj Sastri, NC leader

  1. The people are unable to realise the presence of the state.
  2. The NC has deviated from its ideals which it championed during its formative years. BP Koirala, who propounded the party's guiding principle- democratic socialism- did not devise the economic model of democratic socialism and this created confusion in the party.
  3. The current leadership of the party has failed to emulate the values of democratic socialism. Individualistic thinking is rife in the party. Martyrs have sacrificed their lives for democracy. Whether you call it janabad or samajbad, they have the same essence.
  4. The people should be empowered and free to decide their own destiny.

'Building a common citizenship does not mean cultural homogenization'

Dev Raj Dahal, FES, Nepal office head

A constitution is the self-organisation of society for collective action. It also seeks normative standards for governance which is essential for national building that is an internally driven process by which the people of diverse social origins develop a common nationality and identity. Building a common citizenship does not mean cultural homogenization. The idea of the 'nation' comprises many elements- historical consciousness, cultural and religious syncretism, communication and self-determination in politics, laws, and public policies.

A constitution can flourish only when it protects the interests and relationships of diverse citizens of the same nation-state. Nepal's constitution has developed separate rights for some, equal entitlements to all citizens and inclusive commissions for other articulate groups while the poor and minorities are entitled to the distributive justice. All these elements have remained far from being consolidated as there is short supply of effective governance reflected in the imbalance of demand and supply of basic state goods such as security, rule of law and public services. Nepal has endorsed both sets of human rights- civil and political and social, economic and cultural rights and used them as central point to legitimize nation-building process. Political culture of Nepal, however, deeply influenced by the psychology of protracted political transition driven by three forces- conservative, moderate and radical ones. The ideologies of neo-liberalism, liberalism and communism espoused by Nepalese parties, however, contest national knowledge, values, history and heritage of tolerance of diversity that gave this nation endurance and unity for long.

Democratic constitutional state is based on 'legitimate monopoly' on power, taxation, loyalty of citizens and international recognition. On all these aspects, the Nepali state is weak. It has difficulty in maintaining the constitutional vision of national unity as federal question for all intents and purposes remain far from settled. The clashes between the sub-national forces and nation state have continued to hobble the capacity of state to implement the constitution and steer national reconstruction. A successful nation-building process in Nepal requires a common process of socialization and collective formation of meta-identity- citizens- with a view to legitimizing the use of public power within its territory. National integration can, in most cases, only be achieved if the sources of power and the rules of governance are considered legitimate in the eyes of public enabling the leaders and citizens to transcend group-based loyalty to the nation-state and defend civic nationalism that liberates them from feudalism, colonialism, authoritarianism and external micromanagement that suffocates both national articulation and self-determination.

Promoting democracy as a set of principles, values and ideals is, therefore, is an element of national identity-formation of enlightenment and autonomous citizens. Strengthening democracy in Nepal requires democratisation of the inner life of bureaucracy, political parties, civil society and public institutions and the utilisation of its historically evolved ethos of 'a garden of multi-colours' that supports social pluralism, heritage of tolerance and community resilience. The national political parties must have to make a common cause with each other and politically significant groups of society should be engaged in the implementation of the constitution and fostering a viable path of democracy, nation building, social peace and reconciliation. Election of local self-governance bodies offers more stability and inclusion and a return to effective governance to fulfil citizens' basic needs, rights and freedom through resilient rebuilding of nation state. The challenge ahead is how to diversify economy and the social relationships from primary level of family to nation-state and cosmopolitan levels so that the constitution can muster all the resources of statehood- resources, recognition and responsiveness to realise Nepali citizens' rights, needs and legitimate aspirations.

Min Bishwokarma, lawmaker and NC central committee member

  1. It has been necessary to define martyrs by keeping different periods in which they lost their lives into account. There are martyrs of 2007 BS, from 2018 BS to 2033 BS and from 2036 BS to 2046 BS. Their contribution should be evaluated. There is also tendency to declare the people killed in road accidents as martyrs. This trend must be stopped.
  2. Now it is time to focus on development but development and justice should go side by side. The minorities and marginalized should not feel being discriminated by the state when it comes to the distribution of resources and development.
  3. Some NC leaders are talking about reversing secular and republican set-up. The NC should clarify its position on them

Khilanath Dahal, MMF general secretary

The dreams of martyrs have not been yet fulfilled and the state should guarantee health and education services, employment and social security for the people. The government recently declared the name of martyrs, who had laid down their lives for the cause of democracy and freedom while fighting against the autocratic Panchayat system. The more martyrs need to be listed. The MMF is voicing for the rights of working class. The offspring of the poor people have been deprived of quality education and the state should address their plight.

Discussion Session

The first session was chaired by former lawmaker Sambhu Hajara. Advocate of Supreme Court Dinesh Tripathy presented his working paper entitled 'the statute writing process and national building'. Amuda Shrestha commented his paper.

The gist of his Tripathy's paper

  1. Constitution is the basic document and main law of land necessary to run the state and define the relationships between the state and the citizens. It presents the roadmap for the social transformation.
  2. Nepal's new constitution was promulgated following a long and arduous political haggling. There is no alternative to making it successful and functional. We have only completed the statute writing process but the statute building process is going on. It is constantly refined and developed in line with changed aspirations of the state. In the beginning, it is just a skeleton and it is fleshed out with the amendments and interpretations.
  3. Nepal's statute has stipulated the basic democratic structures and embraced the fundamental elements of constitutionalism. It has a long list of socio-economic rights and has made them justiciable. It is a new contract between the state and citizens. In the post-conflict society, the statute building is a process to increase societal trust. It is imperative to transform the constitutional provisions into reality by making it acceptable to a larger section of populace. It is not a dogmatic document carved in the stone. In order to make it a working document, it requires responsive and active citizens, democratic culture, patience, social discipline and constant vigilance.
  4. There is a national challenge to implement the statute. It demands strong national will power and resolve. Only with the successful implementation of the statute, we will be able to carve a brighter future and end protracted transition.
  5. A meaningful dialogue with all stakeholders is a must to pave the way for its implementation. Formulation of necessary laws, intensive social and political dialogue, formation of experts' team, resolution to the demarcation dispute, change of the judicial structures and devising the national strategic plan are a must to translate the statute into action.

Amuda Shrestha:

Constitution is a document of compromise. The Nepalese have accepted the statute under severe circumstances. The common people have been left in the lurch. To change mindset and build the capacity is essential to implement the statute. The paper has not pointed up the role of citizens. The people should be empowered. It requires vision to bridge the gulf. The people demand accountability.

From the floor

Ishwar Poudel said that the statute was framed on the basis of the principle of constitutionalism. It can be amended as per the need and desires of the people as happened in India. India is still grappling with the problem of Kashmir since its independence in 1947. Where there is discipline, there is no need of law. Another participant noted that Tripathy's paper holds positive views but it is abstract. The intellectual should write technical paper based on the real and concrete ground. The paper keeps mum about the basics of the nation building.

From the chair, former CA member Hajara said that the second CA turned down many decisions made by the first CA. It is puzzling that even 467 CA members stood in favour of the statute, it could not get through.

Second session

In the second session chaired by Trade Union Congress vice-chair Rama Poudel, senior journalist Yuva Raj Gautam presented his working paper entitled 'Nationalism, Democracy and Mass communication'. Engineer Hari Krishna Shah commented his paper.

The gist of Gautam's paper

  1. Notwithstanding the good virtues and principles of democracy, it can be dysfunctional if the political parties are incompetent and corrupt. Propensity to promote inept apparatchiks, imposition of party autocracy by a cabal of leaders, the harassment of the wise and good persons in minority by the majority of ignoramuses and expensive election and corruption are the real enemies of democracy.
  2. In many nations where democracy has been strengthened, nationality has not become strong largely owing to chronic political instability. In Nepal, 20 governments were formed from 2046 BS to 2058 BS, and nine governments came since the 2062/63 movement. Constants political instability weakens nationality and poses a threat to territorial integrity as it provides a breeding ground for fanning communal and ethnic hatred.
  3. The political parties should realise that nationalism will be in jeopardy if they fail to keep a tight rein on the foreign powers that are active here in the name of supporting democracy. There is an infiltration of foreign aid into executive, legislature and judiciary as a result of the tendency of accepting the donation on any condition. The foreign aid from the western nations has also come into the fourth estate uninterrupted since 2006.
  4. The media have strongly opposed the meeting between the office-bearers of the National Human Rights Commission and the individual involved in the secessionist activities. It is undeniable matter that the state must not allow any individual active to affront nationalism on the pretext of fighting for democracy and freedom.
  5. Nationalism, democracy and media are complementary to each other. If the intellectuals, thinkers, politicians and cadres commit to and honour democracy and nationality, no authoritarian ruler or anti-democratic force can dare to overtake democratic forces.
  6. Nationality is under attacks from different fronts and it is time to rise up against all sorts of designs aimed at smashing Nepali culture, religion, nationalism and democracy. The nation cannot avert the impending conflict and civil wars if it continues to be clobbered by various parasites.

Hari Krishna Shah:

  1. Ideology is the basic ingredient of political parties. PN Shah has been forgotten now. Rights discourse lopsidedly takes precedence over development. The nation has its own identity. What the hell are the media doing to preserve the national identity?
  2. We are first Nepal and only then the supporters of political parties. No one is above the nation. It is necessary for the NC to clarify its socialistic vision.

From the floor

It is bizarre that the new constitution, approved by about 90 per cent of CA members, is being protested by some. Illusion has been created about PN Shah. It is paradox that Nepal where over 80 per cent Hindus live has been declared secular. Religion can glue Terai with the hills and mountains. Our national identity is in crisis. We have to explore the formula of unity instead of descending into conflict. Religion binds the people to the ethical norms and discipline.

Third Session

Shanta Sedhai presented her working paper 'Gender outlook in Nepal's Constitution' in the third session chaired by Dhruba Chandra Gautam. Student leader Nain Singh Mahar commented her paper.

The gist of Sedhai

  1. In its preamble, the new constitution has made a resolve to carry out forward-moving restructuring of state to solve problems relating to class, ethnic, regional and gender problems. It has guaranteed that women will not be discriminated just because of her sex. It has ensured gender equality, reproductive right, rights against violence and equal right on parental property. It has granted the right of the offspring of women to get citizenship on the basis of descent. Male and females both can hand over their citizenship rights to their sons and daughters.
  2. The political parties should field at least 5 per cent women candidates in the election of the House of Representatives and 50 per cent of them in the proportional representation poll and at least three women should be nominated in Upper House. The posts of president and vice-president should go to different ethnic community or gender. Likewise, there should be one woman in the post of either Speaker or Deputy-Speaker of House of Representatives, and the chair or vice-chair of National Assembly.
  3. Despite having the provision of reservation and positive discrimination, the condition of women has not substantively improved. The state has not yet guaranteed gender friendly education, health, education, employment, reproductive health and security for the women.
  4. Initiatives are necessary from all sectors to increase social, economic and political status of women by rising above the partisan line. All should accept the truth that women, the source of human creation, have given continuity to it. Therefore, all should strive for the qualitative, quantitative and result-oriented presence of women in all strata and organs of the state.

Nain Singh Mahar

Democracy is itself inclusive. We have the best statute in terms of women rights. It has obliged the state to fulfil 31 fundamental rights. It seems that while inserting so many rights in the constitution, its drafters have overlooked the implementation capacity of the state. Challenges lie in its implementation.

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