Contentions in Constitution Making

The leaders who publicly expressed their commitment to constitution making were themselves, in fact, not serious about what they proclaimed. They were not seriously concentrating on the key issues of constitution on practical ground. As the parties sidelined the main duty of constitution writing and engaged more in lust for state power, constituent assembly, CA members, political parties and the government were criticized from all corners.

Political parties were divided over dozens of issues in the process of constitution making. Their differences still exist. Though they could strike consensus on many of the issues, they could not come together on key political issues concerning  in principles and policies. As interparty discussions and discussions in constituent assembly for attempting consensus could gain no significant achievements, constitution writing process was obstructed time and again. And the CA Calendar was amended for the tenth time. As it became apparent that things would not go according to the set timeline, all the timeline set earlier was changed.   And May 28, 2010 was set for the deadline to finish all of constitution writing process.

The meeting of Constitutional Committee, the main committee of CA, was put off for an indefinite period as it received no functions to carry out. The party leaders that expressed their commitment publicly to constitution making did not seem serious themselves. They were not seriously concentrating on the key issues of constitution on practical ground. As the parties sidelined the main duty of constitution writing and engaged more in lust for state power, Constituent Assembly, CA members, political parties and the government  were criticized from all corners.

For the moves of the government and the political parties, constitution could not be declared within the stipulated time and the timeline had to be extended. Though there are twenty four parties in the Constituent Assembly, most of the contentions in the committee discussions were specific to UML, NC and Maoists. As these three parties did not budge from their respective stands, committee discussions ended inconclusively. Other parties also expressed their different opinions in the course of discussions, but they waited for the big parties to come to agreement and took their consensus for the solution to many key contentious issues. They seemed to have succumbed themselves to the notion that the big parties’ decisions would finally overpower and dominate the political setting.

Form of the government has remained the bone of contention among the political parties. Discussion on committee on form of the government and other discussions did not become fruitful. The high level mechanism that was formed to assist the government did not give due importance to issues of form of government. Though the Nepali Congress, United Communist Party of Nepal (Maoists) and  Communist Party of Nepal (UML) held series of discussions  intended to seek solutions of the political deadlock in a package, they were not  clear  about which point of discussion was to be prioritized. NC and UML sough to address the complications  of peace process and constitution making while  wished to began from the leadership of the government. As  the interests of these two parties  contradicted with each  other the meeting of the high level mechanism could not go smoothly.  Finally, high level mechanism could not play significantly constructive role in constitution writing process.

In the committee on form of government Maoists proposed the presidential system with the executive power. Though other political parties can come to this scheme on consensus, Maoists advocated the powerful president directly elected by people. NC and UML are in favor of Westminster model parliamentary system. NC and UML view that if the president is directly elected from the people there is danger for him not only “ to be powerful but also authoritarian.” They further hold that in a country that holds the diversity in culture, language, race and other areas, president with executive power directly elected by the people will not be appropriate person to symbolize national unity. So they are against this system.

NC and UML believe that if the prime minister is elected from the parliament and is vested executive power in him and if president is elected from the parliament and is given constitutional status, president can represent the diversity of the country, and also president can be elected even from the minority and marginalized and other communities. In the scheme of NC and UML, no-confidence motion cannot be registered against the prime minister within one year of his induction and in case of doing so the opposition has to suggest the name of future prime ministerial candidate. NC and UML believe that this provision will contribute to minimizing political instability and the frequent change of the government. Terai Madhesh Loktantrik Party wants president elected from the lower house of parliament as the head of the sate and head of the government. For TMLP if head of the state and head of the government is the same person it can contribute to ending political instability.

Political parties are divided over the issues of electoral system too. NC and UML have stood in favor of mixed electoral system with compensation. Maoists favor multimember Direct Full Proportional Election system. Parties strongly dispute over whether to call the ten year old Maoist armed struggle Peoples’ War or armed conflict. Maoists argue that it should be called People’s war and NC and UML and other parties have proposed armed conflict. Though both sides put their opinions in the discussion of Committees of CA and other meetings, they could not reach conclusion.

The preconditions set by the constitutional committee for preparing constitution draft

• Whether or not to follow the principle of constitutionalism?
• Whether or not to accept the principle of pluralism?
• Whether or not to practice the theory of power separation, and check and balance?
• Whether or not to accept the principle of fundamental structure in expressive way?
• What will be the form of the government?
• How will the council of ministers be formed?
• Who will be the chairman of the council of ministers? President or prime minister?
• Will the head of the state be executive or constitutional and symbolic?
• Whether or not there will be both prime minister and the president?
• What will vacate the position of president and prime minister?
• What will be the form of federal legislative? Unicameral or bicameral? What names to be given to them? What will be the number of the members in each house?
• What will be the form of election for federal legislative? Whether to make the base of representation and population and geography or only population?
• Who hold the right to interpreting constitution? Whether to form mechanism to appoint and dismiss judges from the legislative or to make a separate mechanism for the purpose? Provision of appointment of chief justice of the Supreme Court; should he be appointed from within the court network or should he be appointed from outside?
• How many provinces to be fixed restructuring the state?
• How to settle the demarcation of borders between the provinces?

Source: Issues presented to the CA for discussion by Constitutional Committee on March 9, 2010

Also in the controversy is the issue of military training for the defense of the country for the citizens who have attained 18 years of age and the proposal “ it will be their duty to serve the nation when called upon.” UML and NC hold that such a provision will lead country toward war and violence rather than to peace and stability. Maoists hold just the opposite view. They hold that “the provision of recruiting in the army will contribute to sustainable national integrity and national self dependence.”

Political parties could not forge a ground of consensus over the question of whether the Maoist soldiers in the cantonments are to be called “people’s liberation army” or by other name. The parties had huge differences over whether to call Maoist combatants People’s Liberation Army(PLA). NC, UML and other parties refused to call the combatants PLA. They opted for “Maoist combatants” while Maoist remained adamant to their choice of phrase “people’s liberation army.” Though opinions varied, the committee report called it “Maoists Army.”

There is controversy about language. Whether to make Nepali language language of official use in government offices or whether to recognize other languages for that purpose has remained the bone of contention among the political parties. NC and UML stand in favor of making Nepali the language of official use. Maoists are in favor of multiple language policy. Madhesi Jana Adhikar Forum (MJAF), Terai Madhseh Loktantrik Party (TMLP), Sadvhanna party and other teraibased parties are against the principle of making only Nepali the language of official use. Following the principle of multiple language policy, Madhesh based parties argue that Hindi should also be the language of official use.

Parties differ over the conditions for opening up political parties. Maoists have brought new condition in this regard. “ It will not be considered prohibited to formulate law on banning political parties that encourage formation of mechanism or structure working toward  treason and betrayal of the nation, working as stooges of the foreign powers, plotting against the nation, and regressive work.” NC and UML have expressed doubt over this in new constitution. They are of the opinion that this provision is a ploy of the Maoists to ban the political parties that hold different philosophy and ideas in the name of the “parties plotting treason.”

Though NC UML and other parties are seen to stand in favor of the rights and identities of oppressed community, janajatis, indigenous people and Madheshis, they are not in position to consent to the right to self decision. Maoists hold that oppressed community, janajatis, indigenous people and Madheshis should be given right to self decision, autonomy and self governance.

There are intense differences among the parties about the structure of the legislative body. They differ not only in principles but in the choice of names. They have expressed discontent in the name of the parliament. While NC, UML and other proposed to call it ‘legislature’ Maoists insisted that it should be named Federal People’s Representative. They differ over the structure of the house. NC and UML are in favor of house of Representative and National Assembly. Maoists stood for the unicameral legislature system. Maoists have that there will be from 152, in the least, and 250, at most, of uneven number, members in the Federal People’s Representative. NC, UML and many other parties have, in unison, proposed the 151 members in the house of representative and 51 members in the national assembly.

Parties have not come together regarding issues of judicial system. Maoists propose that chief justice of the Supreme Court can also be appointed from outside. NC and UML have objected to this provision. For them, the system of appointing judges from out of the courts can lead to the politicization of the courts. They also do not agree to the appointment of judges. For Maoists, special judicial committee of federal legislature should appoint the judges. NC, UML and other parties are in favor of appointing judges from the judicial council.

Parties are divided over the issue of whether the constitution is interpreted by the federal supreme court or the parliament. Maoists stand for the system of interpreting constitutional issues  by the parliament. On the other hand, UML, NC and Other parties argue that the right to interpret constitution should go to the Supreme Court on the principle of check and balance of power. Madheshi Jana Adhikar Forum (MJAF) have proposed constitution of Constitutional Court for dealing with the issues of  interpretation of constitution, issue of national concerns and importance, human rights and citizens’ concerns, and issues related to policies of the country.

There is no uniformity in the restructuring of state.  The names proposed by Maoist on the basis of caste and ethnicity have not pleased the other parties. Not only between the parties, there is no single voice within a party in matter of state restructuring. NC and UML leaders have put forward their idea of state restructuring individually too. NC has not officially submitted its outline for state restructuring in the CA. Though UML has submitted its copy, it is hard to tell which one is the officially approved by the party. The parties are uncertain as to the proceedings of state restructuring. NC and UML are against making caste and ethnicity the basis of state restructuring. They hold that promoting caste gives rise to the communalism and finally lead to communal violence. Maoists hold that caste increase sense of identity and belongingness in them. Interim Constitution has proposed the formation of State Restructuring Commission. But the debates among the parties have overshadowed the role of the commission.

Parties are equally divided over the issues of whether to retain the words such as federalism, secularism, national flag, multiple-province nation state, madhesh movement etc. Though Federalism is documented in the interim constitution itself and the country has endorsed it through the CA, National People’s Front is opposed to the system. Front views that federalism brings about division and disintegration in the country. RPP, Nepal had advocated deciding on issues like Hindu state, monarchy, and federalism through referendum before the constitution is drafted. Parties do not meet at one place even in the name of the constitution.

Constitutional Committee of CA has proposed the name Constitution of Nepal 2010, Federal Democratic National Front, Dalit Janajati Party, Nepa: National Party, Janamukti Party, Democratic Socialist Party and independent lawmaker Sadrul Miya Hak proposed the name Constitution of Federal Democratic Nepal 2067 (1130 Ne Sa). Nepal Workers and Peasants party has suggested Constitution of Socialism-Oriented Federal Democratic Nepal 2010. UCPN Maoists have given the name Constituion of People’s Federal Republic Nepal 2010, Nepal Sadbhabna Party ( Anandadevi) has proposed the name Constitution of Federal Republic Nepal 2010. Terai Madhesh Loktantrik Party says that it is not necessary to put date after the name of the constitution.

Maoists have proposed to obliterate “pluralism” from the preamble of the constitution. They argue that after having followed the competitive multiparty system, it is unscientific to use the provision of pluralism in the constitution.  Taking this stand of the Maoists, NC and UML have expressed doubt over the intention of Maoists. They hold that Maoist have not yet accepted democracy from heart. Pluralism and plural thoughts are the important foundation of democracy. Other parties have accused Maoists of nurturing authoritarian thought and character by denying pluralism but by forwarding competitive multiparty system.