Constitutional Approach to Nation Building
One-day seminar organised by Martyr Memorial
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
- 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
- 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.
- All should have ownership of the new statute that institutionalises
the historic gains such as republican set-up, federalism and
- 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.
- The Upper House should have the representations as per the
Dhundi Raj Sastri, NC leader
- The people are unable to realise the presence of the state.
- 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.
- 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.
- The people should be empowered and free to decide their
'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
- 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.
- 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.
- 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.
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
The gist of his Tripathy's paper
- 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
- 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
- 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.
- 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.
- 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.
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
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.
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
- 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
- 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.
- 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
- 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.
- 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
- 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:
- 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
- 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.
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
The gist of Sedhai
- 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
- 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
- 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.
- 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.