31 Fundamental Rights have been Proposed

Binda Pandey
Chair, Committee on Fundamental Rights and Directive Principles

How many fundamental rights has the Committee proposed?
Thirty-one issues have been proposed for fundamental rights.

What are the bases for identifying the fundamental rights?
Basically, we have taken four bases while deciding on fundamental rights: 1) the present provisions in our constitution, 2) our commitments to international community, 3) values established by movements at various times, 4) opinions collected by the CA members from the people. We have proposed the fundamental rights on the four bases.

What types of suggestions were received from the people to be includes as fundamental rights?
While listing the suggestions from the people, about 150 issues were included. There were some who suggested death penalty for those committing serious crimes but which was not included because it would conflict with international human rights. There was no question of including issues, which would go against our commitments. Then, the sub-committee finalised 49 issues. Then we discussed the list in the main committee, and the draft committee proposed 31 fundamental rights, which was endorsed by the Committee. The point of our discussion was that only those rights needed to live as a dignified citizen should be included as fundamental rights in the constitution.

What are they?
When closely looking at the suggestions from the people, five/six issues were important, which were seen necessary to be mentioned as fundamental rights. There was a common recognition that issues food, housing, clothing, education, health, social security, and employment must be included under fundamental rights. There are new issues as well which were not there. For example, right to housing, right to employment, rights of victims, and issues of untouchability should be seen in different lights instead of lumping it together.
There are suggestions that inhuman behaviour towards Dalits should be punished severely and compensation should be paid to them. There is the understanding that untouchability is limited to Dalits alone, which is wrong. Besides Dalits, there is untouchability in other communities as well because in Chhetri-Bahun households, there is still compulsion for women to practice untouchability. Discrimination based on physical abilities is still prevalent. There is untouchability between Upadhyaya Bahuns and Jaishi; there is untouchability between Jaishi and Chhetri; there is untouchability between eastern and western Kumain. Discussion centred on the fact that unless these are removed, untouchability cannot be removed from society. There was agreement on this. Among the new addition is the issue of consumer rights, also family rights. In addition to equal recognition to sons and daughters, there is the suggestion to totally ban polygamy. Mainly, attempt has been to establish the right of a citizen to exercise human rights in a dignified manner.

What should be called citizenship?
An official identifying document between a citizen and his country of domicile is the citizenship. In our context, we believe citizenship is everything, but in some countries, identity card is sufficient for everything. In our context, citizenship is needed while acquiring driving licenses to everything else.

What was your assessment of the policies until now on providing citizenship?
The need of citizenship in society rose along with modernity. In the beginning, it had no meaning. There was no need for this. In our context also, mothers-fathers, grandfathers-grandmothers had no problems of citizenship. However, later as fundamental rights took hold in such a way that citizenship also acquired importance based on that. Because fundamental rights mean that the country has to provide citizenship to its citizens. Even to practice such rights, the citizenship became necessary. In our context, initially it was quite flexible, but is gradually seen to have become rigid, which was based on male-centric values and standards.
Before 2019 BS, anyone born in Nepal was automatically a Nepali citizen but after that only the children of Nepali fathers were recognised as Nepali citizens. In addition, then later, children from foreign father and Nepali mother or having resided in Nepali for two years were recognised as Nepali citizens. However, after 1990 CE, the process became more difficult instead of flexible. The authority issue citizenship got restricted to the state and it became accepted that citizenship rights through of mother is not recognised.

Why in our case is there dispute on citizenship and women’s relations?
The policies regarding citizenship for women gradually became more stringent and that was not the case for men. In men’s case, any child from Nepali father born anywhere is a Nepali citizen. In father’s case, there has been no change, has not been made stringent. However, in mother’s case, in the beginning, children born to Nepali mothers in Nepal were citizens, but now the provision states that the mother has to prove that she lives here and the father is not a foreigner before issuing citizenship. Therefore, the discussion is going on about policies on citizenship remaining stringent for women but in men’s case maintaining the status quo.

What was the dispute in the Committee?
That has been the issues in our Committee discussions. The real dispute is whether issuing citizenship should be based on equality or retain the old recognised standards. There is a clash as whether to maintain the status quo or despite the past, citizenship should be issued on based on equality without gender discrimination.

The discussion on citizenship in the Committee focused on ‘son-in-law’ and ‘daughter-in-law’. Could you clarify this?
The discussion focused on five issues. Of these, two are based on equality, one would fit in either way, and another one is very difficult. The remainder is based on male-centric proposal.
Of the two proposals based on equality, one argued that a sensitive and official document like citizenship should not be issued immediately after marriage to a foreigner. But one marries the person one loves, and it can be a foreigner or national. That cannot be stopped. Other argument was to institute identity cards in such cases. This should be applied to both men and women. The majority of Committee members feel that identity cards can be issued immediately after marriage and naturalised citizenship after living in Nepal for 15 years to ‘son-in-law’ or ‘daughter-in-law’. This is a stringent provision but another more liberal argument based on this proposal is for to issue citizenship immediately to a foreign male married to a Nepali female as in the case of a foreign female marrying a Nepali male that is the case now.

Another argument is against issuing citizenship to ‘son-in-laws’ because it will affect our nationalism, but we cannot deny citizenship to ‘daughter-in-law’ and should be issued one like in the present. Others argued that provision should be made to issue ‘daughter-in-laws’ with citizenship immediately and have a ceiling of 15 years for ‘son-in-law’. One more argument is against issuing citizenship to foreigners and proposes instead identity cards for both ‘daughter-in-law’ and ‘son-in-law’ and denial of political rights at all. The Committee has proposed that citizenship should be issued based on 15 years of living in Nepal for both ‘daughter-in-law’ and ‘son-in-law’. We could be flexible in terms of timeframes, which could be 10 or 7 years, but there should be equality and yet cannot be issued immediately. This is the majority proposal. UML and UCPN (M) agreed on 15 years; Nepal Congress argued for 15 years for ‘son-in-law’ but immediate citizenship for ‘daughter-in-law’; and Nepal Workers Peasants Party was against issuing citizenship. The Forum was for immediate citizenship to both; TMLP initially was against ‘son-in-law’ but later proposed immediately for ‘daughter-in-law’ but 15 years of residence for ‘son-in-law’.
The Committee members Congress were also in favour of keeping a 15-year ceiling for both females and males. This proposal initially came from them, but Congress did not accept this after we sent drafts to the parties to get the views of the party, and they were compelled to follow the party line. While finalising the report, the party influence took over.

Was the Committee proposal reversed by the high-level dispute resolution working group led by Prachanda?
Yes. Now the working group endorsed whatever was proposed by Congress and agreement was reached on 15 years of residence for ‘son-in-law’ and immediate citizenship for ‘daughter-in-law’.

Are you against this agreement of the high-level working group?
We are extremely against it. The CA cannot adopt such a provision that goes against equality in the new constitution. This will constitutionally again create gender discrimination.

Were not there many dissentions in your own Committee?
We also had a few dissentions in our Committee. We had hoped the high-level committee would resolve this uses but instead it entangled the whole issue.

How did it do that?
In the case of children, they will get citizenship through descent. If a Nepali son marries a foreign female, she will get naturalised citizenship immediately. But whatever his parents are and wherever he is born, she will get citizenship based on descent. Since the head of the state, prime minister, parliamentary speaker, head of security agencies have to be citizens of Nepal based on descent; these children will automatically be eligible for these posts. Even if the mother is a foreigner, the children will be citizens by naturalisation rules. And these children are automatically disqualified at birth for the above-mentioned posts. If they are born outside Nepal, they cannot become Nepali citizen even through naturalisation. This will create a situation of discrimination. Thus, a child born from a foreign mother will get a citizenship through descent but a child from a Nepali mother (but foreign father) will get naturalised citizenship only after 15 years of domicile in Nepal and if she is born outside, she will be a non-Nepali. This is also another case of discrimination for children.
If
Nepali women give birth to children in foreign shore and their father has not been identified, when they return to Nepal, the children will be non-Nepali. Also, if the foreign ‘daughter-in-law’ is not willing to take Nepali citizenship, her children will be non-Nepali and will not get Nepali citizenship. Therefore, it is our conclusion that the CA does not have the right to declare Nepali citizens into non-Nepali. It is said by issuing citizenship, population will increase; if that is true, can we say that then that two children from the same household will fed but cannot feed the third child? Or the family should not bear children. Once the child is born, we cannot declare that it is not our children because the family size will be too large. Therefore, in the case of children, citizenship should be provided in all cases. Nepali children from Nepali parents cannot be declared non-Nepali. But there can be flexibility in the case of time ceiling; whether it is ‘son-in-law’ or ‘daughter-in-law’, citizenship should not be provided immediately. Even in the case of India, after 5 years of residence and fulfilling certain requirements, only then citizenship is awarded. It is not acceptable that a Nepali gets citizenship only after 5 years of marriage and residence in India but an Indian daughter gets citizenship after marriage in Nepal the next day. It is our suggestion that since our situation is more critical that there should be a longer ceiling.

By: Dhruba Simkhada
Date of publication: 21 April 2011

Personal Experiences of CA Members

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The Constituent Assembly of Nepal is very heterogeneous, representing different ethnicities, religious, communities, class, regions, and gender. It can be called a ‘rainbow assembly’. The CA members bring different faces, languages, and dresses to the Assembly meetings. These members from different backgrounds were elected with the aim of drafting a constitution through the Constituent Assembly election on April 10, 2008 through a mixture of direct election and proportional representation, all with the aim of drafting the constitution for new democratic republic of Nepal. There were 601 members in the first sitting of the Constituent Assembly on May 28, 2008. This number kept changing afterwards, and this number is now 594. The initial joy, ambition, energy, and revolutionary fervour with which they had first entered the Constituent Assembly building in Naya Baneshwor soon died down. Their zeal for constitution-drafting had subsided so much that during the three-year duration and 109th meeting of the Assembly, they had become subjects of ridicule and derision.

The CA members who had aim of drafting the constitution also had personal, familial, social, and national obligations, and they had to meet these challenges as well as the duties assigned by their parties. Despite these challenges, they prepared a preliminary draft after two years of discussion, consultation, and debated on different issues of the constitution. However, this could not be presented as a bill in the Assembly due to positions and disagreements among the parties.
Along with management of Maoist combatants, finalisation of federal structure, form of government, and judicial system, and issues of inclusion needed to be incorporated in the constitution. However, these could not settle despite many discussions. The indifference of ‘senior leaders of large parties’ was mainly to blame for this. The CA Regulations and calendar of events could not be implemented properly. Now they are being blamed for not drafting the constitution amidst accusations of just drawing the allowances.

The CA members remained divided. The division among CA members tasked with drafting the constitution affected all parts of society. They were also divided on the issue of ethnic federalism. Some fervently advocated ethnic federalism, while others fiercely opposed it. CPN (ML) CA member from Chitawan Pravati Mahato Kumal had said in April of 2010, ‘I am daughter of a Kumal, married a Mahato. I am Janajati but not in favour of ethnic states’. Similar sentiments are also expressed by Congress CA member from Kathmandu Dhyangovinda Ranjit. Though he is a local Newar of Kathmandu, he in not favour of Newa: state.

UML CA member from Mustang Tasi Shangmo Gurungseni accused the CDO of tampering her caste while issuing citizenship certificate. Her actual caste is Bahragaun. She wants her identity to be as someone from Bahragaun. She says, ‘There had not be a parliamentarian from our caste; I am the first one. This is a pride for our caste.’ UCPN (M) CA member from Dolakha Chun Bahadur Thami, who used to be a carpenter, is also not happy about being included within Tamsaling. He wants a separate autonomous sate for Thamis. Another CA member from Dolakha Shanti Maya Jirel had claimed Wollo Kirant. Thus, even among the Janajatis, some are after ethnic states while others are worried that their identity will be lost under ethnic states. On the other hand, members from Bahuns, Dalits, Muslims, Giri, Puri, Bharati and others are opposing ethnic states.

The government provides monthly NRS 45,000 to the CA members; however, they complain that the party collects heavy levies from them. They get only NRS 40,000 after taxes. CPN (ML) CA member Kumal expresses thus: ‘The party takes NRS 25,000 as monthly levy. How can we survive on the remaining NRS 15,000 in an expensive place like Kathmandu? The room rent alone is NRS 8000. How can we send our children to school? How can we run our household? We have to travel on the public tempo and microbuses with CA member logos on us. Some say that we can ride taxis since we are paid NRS 50,000. But we know our troubles. Before becoming a CA member, I used to teach at nursery level. I used to own NRS 18,000 monthly. I used to get monthly NRS 20,000 from goat-rearing. Our household was running smoothly; my husband used to study, but now he has had to quit his studies’.

The leaders were confused; the CA members were focused on their own issues of ethnicity, religion, region, and gender, and wanted to include their issues in the meetings and preliminary reports of the thematic committees and presented themselves accordingly. But they could not draft the constitution. Amidst distrust, pessimism, frustration, prejudice, the chagrined CA members extended the CA deadline for another three months with claps in the morning of May 28, 2010. The sleepy and sleeping CA members lying on the lawn, sofas, and snoring in the corridors on that night presented a sorry sight. The sleep-deprived members went to their homes with the sunrise as if after a hard-won fight. Though the deadline was extended easily enough, there was no sense of relief on their faces; instead there was much confusion and uncertainty for the next three months if the leaders continue their previous working styles.

High-level Taskforce: Fails to find Consensus Major Issues

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The High-level Taskforce was unable to find consensus only in minor issues but not in issues that have stalled the constitution-drafting process. The UCPN (M) chairperson Pushpa Kamal Dahal-led Taskforce held 27 meetings and was able to garner consensus in some minor issues but it disappeared from the scene without fulfilling its responsibility despite two extensions.

A seven-member High-level Taskforce of senior leaders from various political parties was formed on October 11, 2010 to resolve disputes seen in constitution-drafting. UCPN (M) chairperson Pushpa Kamal Dahal was chosen as the coordinator of the Taskforce in a meeting attended by 27 political parties. Its members were Congress parliamentary leader Ram Chandra Paudel, UML chairperson Jhala Nath Khanal, Forum chairperson Upendra Yadav, Nepal Majdoor-Kisan Party chairperson Narayan Man Bijukchhe, Prajatantrik Samajbadi Dal president Prem Bahadur Singh, and Sanghiya Loktantrik Rastriya Manch leader Rukmini Chaudhari.

The following were selected to assist the Taskforce: Ramesh Lekhak from Congress, Bharat Mohan Adhikari from UML, Deb Prasad Gurung from UCPN (M), Ratneswor Lal Kayastha from Forum, Sunil Prajapati from Nepal Majdoor-Kisan Party, and Prem Bahadur Singh and Rukmini Chaudhari from other smaller parties. However, there was dispute from the beginning on the formation of the Taskforce and participation from political parties.

Question on Taskforce Formation
As soon as Constituent Assembly chairperson Subash Nemwang had formed the Taskforce, questions were raised on the constitutional legitimacy and formation process. Those raising these questions were not only independent intellectuals and lawyers but also Nilambar Acharya, chairperson of the Constitutional Committee tasked with preparing the draft of the constitution. By raising the question of legitimacy, chairperson Acharya had indicated that the ad-hoc decision of the CA chairperson might invite disputes later on. He made it clear, ‘Since this is a political taskforce, the Constituent Assembly is not obliged to accept its decisions. If the taskforce was constituted from within the Constituent Assembly, it would have been constitutional’.
Experts on procedural matters argued then that since the Taskforce was formed without amending the CA calendar of events, it impinges on the authority of the sovereign CA, so the Taskforce is unconstitutional. The CA chairperson had formed this Taskforce without first amending the provision where all the thematic committees had to submit their reports by October 17, 2010. The critics, therefore, argued that the formation of this Taskforce is not only against the CA Regulations but also against the spirit of the Interim Constitution 2007.

Who should have the say: the Committee or the taskforce?
After the Taskforce reached a different consensus from the Judicial System Committee of the Constituent Assembly, question was raised the legitimacy of the thematic committees of the Constituent Assembly. The Judicial System Committee a majority in its report submitted to the Constituent Assembly had proposed that the judiciary would remain under the parliament and the appointment of the Chief Justice and justices would be done by the parliament. However, the Taskforce reached a consensus on a separate independent authority to make the appointment to these posts. After it was concluded that such a mechanism would be headed by the chief executive, the chairperson of the Committee Prabhu Saha Teli and other UCPN (M) members of the Committee raised their objections. After the UCPN (M) Committee members including its chairperson Saha expressed their dissatisfaction to Deb Prasad Gurung on November 2, 2010, at the Taskforce having reversed the Committee report that was passed through a majority, it could be understood that UCPN (M) had decided to not to give continuity to the Taskforce. Yet, it was seen as flexibility on the part of UCPN (M) to reverse the decisions of the Judicial System Committee that was headed by one of its members, Prabhu Saha Teli.

Three days after the Taskforce had reached a consensus on the chief executive heading a similar mechanism similar to the present Judicial Council or the Constitutional Council, on November 3, the then Chief Justice Ram Prasad Shrestha expressed his dissatisfaction at the decision.
On the one hand, there is the preliminary draft prepared by the Committee after lengthy discussions and which has also been endorsed by the Constituent Assembly. On the other hand, there is the report prepared by the Taskforce constituted outside of the Constituent Assembly on consensus found in some minor issues. The report prepared by the Committee has been discussed as draft part of the constitution. It has been through the lengthy constitutional and legal process. Now, should the Constituent Assembly endorse the consensus found by the Taskforce? If it should, what should be the procedure? Amidst these questions, those forming the Taskforce did not extend the mandate of the Taskforce nor did they dissolve it.

Even after discussions of two months and 10 days, the Taskforce could not enter into discussion on the future form of the government and state restructuring. Forum Chairperson and member of the Taskforce Upendra Yadav was perplexed at the tendency of the Taskforce to seek consensus on minor issues without entering into the issues of form of government, electoral system, state restructuring and other contentious issues. He said, ‘There will be no guarantee that a new constitution will be drafted unless there is consensus on these issues. We seriously object to the 14 states proposed by UCPN (M). After the Taskforce member Rukmini Chaudhari was adamant on a bicameral parliamentary system, the consensus reached a day earlier in her presence fell into dispute. Amidst the disputes, the Taskforce has reached consensus on an independent judiciary, an important part of the constitution-drafting; however, it has discussed and reached a consensus on other minor issues.

Issues of agreement and disagreement
The Taskforce has said that it has resolved 127 disputed issues out of 210 that Report Study and Suggestion Committee had left unresolved in its 8 months of work. The issue of whether to retain the present structure of districts after state restructuring has been left to the Committee on State Restructuring and Distribution of State Power after the Taskforce agreed to conclude it after discussion with the Committee. There has been an agreement not to declare emergency in the states. There has also been an agreement not to present an alternative when registering a vote of no‑confidence on the chief ministers of the states. The Taskforce has also reached a consensus on separate local bodies for executive, parliament, and judiciary, and also on the formation of the parliament.
Besides these, there has been agreement on making Nepali the official language, issuing of citizenship to non-resident Nepalis without right to political participation, not banning of registration of political parties without affecting national integrity, adherence to mixed economy among others. However, the Taskforce did not enter the crucial issues of forms of government and state restructuring.

Activities of the Taskforce

1st Meeting: October 13, 2010
Formation of the Taskforce with UCPN (M) chairperson Pushpa Kamal Dahal as coordinator. The members are Dr Ram Sharan Mahat, Ramesh Lekhak, Bharat Mohan Adhikari, Deb Prasad Gurung, Ratneswor Lal Kayastha, Prem Bahadur Singh, Sunil Prajapati, and Rukmini Chaudhari.

2nd meeting: October 14, 2010
Senior leaders discuss form of government, state restructuring, and other basic issues of constitution for the first time.

3rd meeting: October 19, 2010
Agreement on 9 issues out of 11 on the form of government. Agreement to settle the issue of whether to retain the present structure of districts after discussion with the Committee on State Restructuring and Distribution of State Power. Agreement not to declare emergency in the states. No need to present an alternative while bringing a vote of no-confidence against the chief minister of the states. Agreement on separate local bodies for executive, parliament, and judiciary. Agreement to form parliament at the local level.

4th meeting: October 20, 2010
Agreement to have unicameral parliament in the states.

5th meeting: October 21, 2010
No agreement on judiciary. The agreement of the previous day is disputed after member Rukmini Chaudhari insists on bicameral parliament in the states.

6th meeting: October 22, 2010
Coordinator Pushpa Kamal Dahal leaves for 5-day trip to China. Next meeting is uncertain. The deadline of the Taskforce is until October 24.

7th meeting: October 23, 2010
Discussion on the judiciary but disagreement remains.

October 24, 2010

A meeting of 27 political parties extends the deadline of the Taskforce for another 11 days.

8th meeting: October 25, 2010
Discussion on citizenship, property rights, and other issues.

9th meeting: October 28, 2010
Meeting chaired by coordinator Pushpa Kamal Dahal, inclusive.

10th meeting: October 29, 2010
Consensus on appointment of the Chief Justice and judges of the Supreme Court through an independent body.

11th meeting: October 30, 2010
Discussion on the judiciary inconclusive. Congress and UML disagree on the proposal of UCPN (M) that the Constitutional Council should be chaired by the chairperson of the parliament.

12th meeting: October 31, 2010
Agreement on the chief executive to be the head of the body formed to appoint judges. Rejection of UCPN (M) proposal on the judiciary being under the parliament.

13th meeting: November 1, 2010
Agreement on appointment of the Chief of the Army Staff by the head of the state on the recommendation of the Council of Ministers, the centre has to seek consensus of the states while entering into treaties and agreement that affect the authority of the states, permission of the centre should be sought while entering into industrial and financial agreements in the states. Disagreement on UCPN (M) proposal for compulsory military training for every citizen above 18 years of age and mentioning of people’s war in the constitution.

14th meeting: November 2, 2010
Agreement to make Nepali with Devanagari script to be the official language.

15th meeting: November 3, 2010
Agreement on a single citizenship to be issued by the central government. This resolves the disagreement among political parties on whether citizenship should be issued by the central government or the state governments.

16th meeting: November 4, 2010
Agreement to provide citizenship to non-residential Nepalis without right to political participation. Agreement on providing citizenship by naturalisation to any foreign female married to a Nepali male upon submission of evidence of having renounced foreign citizenship and to any foreign male married to a Nepali female who has resided continuously in Nepal for 15 years.

17th meeting: November 14, 2010
Agreement not to ban registration of political parties based on political convictions; however, ethnicity- and religion-based parties that might hurt the integrity of the country will not be allowed.

18th meeting: November 16, 2010
Agreement to form land reforms commission; disagreement persists on the modality of the commission.

19th meeting: November 17, 2010
Dispute on land ceiling inclusive.

20th meeting: December 1, 2010
Meeting is uncertain in the absence of coordinator Pushpa Kamal Dahal.

21st meeting: December 2, 2010
Disagreement on whether to include pluralism in the constitution and individual property rights.

22nd meeting: December 4, 2010
Consensus on a mixed form of government with power-sharing between the prime minister and the president; election to the presidency and its authority remains inconclusive.

23rd meeting: December 5, 2010
Agreement to adhere to a mixed economy.

24th meeting: December 7, 2010
Agreement to include the past movements in the preamble of the constitution.

25th meeting: December 8, 2010
No consensus on pluralism, right to self-determination, and people’s war; agreement to forward the issue to the Constitutional Committee.

26th meeting: December 9, 2010
Discussion on the national flag and issues to be included in the preamble inclusive.

27th meeting: December 10, 2010
Congress and other parties express disagreement on UCPN (M) proposal to make only sovereignty and republic as amendable provisions of the constitution. They insist that human rights, press freedom, rule of law, periodic elections, republic, sovereignty should be made unamendable provisions of the constitutions.
After the meeting of 27 political parties on December 20 could not extend the deadline of the Taskforce, its existence became doubtful. Constituent Assembly chairperson Subash Nemwang started to coordinate and chair the meetings of the 27 parties thereafter. Meanwhile, after the split of Tarai Madhes Loktantrik Party, the number of political parties represented in the Constituent Assembly has reached 28.

Lost Nine Months

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There were only five sittings of the Constituent Assembly in nine months. Besides discussion on drafting the constitution, the meetings could not achieve anything else. Only three months remain of the extended deadline. However, the constitution-drafting exercise remains where it was a year ago. In the words of Nilambar Acharya, the chairperson of the Constitutional Committee, responsible for preparing the draft of the constitution, ‘In terms of drafting the constitution, we are in the same position where we were one year ago.’

The meeting of the Constituent Assembly on May 28, 2010 had extended the deadline by one year. The commitment expressed in ‘need to extend the deadline due to lack of sufficient time and will give priority to drafting the constitution now on’ has not been fulfilled by the Constituent Assembly in the nine months since then. In the 102nd meeting of the Constituent Assembly on July 18, 2010, CA chairperson Subash Nemwang had read out the completed and unfinished business of the Assembly.

Chairperson Nemwang had listed the unfinished tasks as getting a consensus of the parties on disputed issues, submitting the reports of the thematic committees to the Constitutional Committee after resolving the disputes, publishing the first draft of the constitution in the Nepal Gazette after discussion in the Assembly, preparing the bill by the Constitutional Committee after integrating the suggestions of the public, and conducting a discussion in the Assembly on each article of the constitution. However, there has been no agreement on these issues even after nine months have passed since the chairperson’s announcement, which has thrown into disarray the working procedures and calendar of events of the Assembly.

Calendar of Events in disarray

Despite the pronouncement of the chairperson of CA moving ahead satisfactorily by preparing its working procedures and calendar events, the outcome has been the opposite. The satisfactory working procedures and calendar events are in disarray due to non-implementation. It was amended for the last time on July 18, 2010 since it was no longer relevant if it could not be implemented. Then the responsibility of managing the timeframe was given to the CA advisory group of work management. Experts say that it is not appropriate to overstep legal provisions prepared by itself in the name of consensus.
The chairperson had also listed the achievements for preparing the timetable for electing the leader and formation of bodies, collection of public suggestions for a second time, discussion of committee reports by the full Assembly, identification of disputed issues and initiative for a consensus, preparation of draft constitution by the Constitutional Committee, and first collection of public suggestions. However, though the preparations are finished, the process of drafting the constitution has not moved ahead. The main reason behind this is the failure to seek consensus on basic constitutional issues before the CA elections.

Lost time

Nine months of the one-year extension has been lost. There has been no consensus of the parties on disputed issues in this period. Even after eight months of work, the report studying and suggestions committee under Agni Prasad Kharel could not resolve the disputed issues. This committee only managed to resolve disputes of the three out of 10 thematic committees and sent to the Constitutional Committee.

Then chairperson Nemwang formed high-level taskforce on October 11, 2010 under Pushpa Kamal Dahal to resolve disputes on constitution-drafting, but this taskforce was not able to enter into basic issues related to the constitution-drafting. According to the taskforce member Ramesh Lekhak, after the taskforce tried to seek consensus in favour democratic practices, the undemocratic forces within UCPN (M) put pressure on Dahal and he did not want to the extend the mandate of the taskforce. On top of that, Constitutional Committee chairperson had protested the formation of the taskforce as being against the Regulations of the Constituent Assembly.

Nonetheless, the taskforce garnered consensus on 127 minor disputes out of 210 from the thematic committees. However, there was no consensus on the basic issues related to the constitution. Then, a mechanism of 28 parties represented in the CA tried to resolve the disputes. However, all it could do was endorsing the agreements reached by the taskforce. Another attempt by a core group of leaders from UCPN (M), Congress, and UML tried to resolve the disputes, but its effort went down the drain. Then the decision was made to forward the thematic committee reports to the Constitutional Committee with the unresolved disputes. Though there was a provision to revolve all outstanding issues by the Assembly and forward all the reports to the Constitutional Committee, the provision was amended to nine thematic committee reports with disputes was forwarded to the Committee. The report of the Committee on State Restructuring and Distribution of State Power has not been forwarded to the Committee. The Committee does not have the authority to resolve disputes, so these disputes will need to be resolved by the Assembly. Chairperson of the Constitutional Committee says, ‘Unless all the disputes in the thematic committee reports are resolved and forwarded to the Committee, an integrated draft of the constitution cannot be prepared’.

The Constitutional Committee which is responsible for preparing the integrated draft of the constitution remained without ‘business’ for eight months and the reports from the committees it received were not without disputes, which left it with no work. Chairperson Acharya said, ‘The Constitutional Committee does not have the authority to resolve the disputes seen in the reports of the thematic committees’. The act of forwarding the reports with the disputes to a body without the authority to resolve them has complicated the task of drafting the constitution.

The disputed 210 issues broadly fall into four/five categories. 1) form of government: the need to finalise the shape and form of the executive, parliament, and the judiciary; 2) Election system is a point of contention: mixed, first past the post, multimember, or another system has to be agreed upon beforehand; 3) basis of federal structure: this is another issue without resolving it the process of drafting the constitution cannot move ahead; 4) the independence of judiciary is another issue: separation and balance of powers between executive, judiciary, and parliament is the main issue right now. The chairperson of the Constitutional Committee Nilambar Acharya says that only after reaching a consensus on these basic issues can the draft bill of the constitution be prepared. He says, ‘The constitution has not gotten a shape yet as there is no consensus on these basic issues’.

The rising political distrust and procedural shortcomings of the CA makes the task of drafting a constitution in the remaining three months a difficult one. Only after the Constitutional Committee has received all the thematic committee reports without disputes, an integrated draft of the constitution will be prepared and submitted to the CA. after discussions in and amendments from the CA, it has to be published in the Nepal Gazette. After the bill has been presented in the CA, seven days have been set aside for amendments. Only then article-wise discussion starts. There is provision of 15 days for disputes articles and sub-articles. Besides the lengthy process, the disagreements and failure to reach a political consensus on these has made the constitution-drafting uncertain. At the moment, the political parties are vying for the government and the CA meetings have been postponed for lack of work. Amidst the rising mistrust and suspicion has also negatively affected the consensus of the parties. The latest competition between UCPN (M) and UML for government has further complicated the task of constitution-drafting, adding to the uncertainty beyond May 28, 2011.

Five meetings in nine months

July 18, 2010: 11th amendment to the calendar of events.
CA advisory group on work management given responsibility to set the deadline.

January 11, 2011: Formation of CA Regulations 2007 amendment draft committee.
After the death of CA member Damber Bahadur Khadka from Sankhuwasabha-2, his seat declared vacant.

January 17, 2011: A bill for amending the A Regulations is registered in the CA.

January 18, 2011: The CA endorses the bill for amending the CA Regulations.

January 26, 2011: The report of the Committee for Determining the Base of Cultural and Social Solidarity is endorsed by the CA to be forwarded to the Constitutional Committee.

President’s Interest and Concern for Constitution-drafting

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There are clear indications in the Nepali political circles that the transition will be a protracted one. There is a competition among political players to move ahead by restricting others. Interparty and intra-party disputes are at an extreme. The people are losing their trust on the leaders as they get involved in mutual distrust, suspicion, and display conflicting characters. There is lack of mutually acceptable leadership who can end the transition. The leaders have to take the responsibility for this delicate phase in peace and constitution-drafting process. It is no surprise that people have expectation from the prime minister Jhala Nath Khanal and other leaders. There is a need for dialogue between leaders to bring the peace and constitution-drafting process on the right ‘track’.

Besides the leaders, President Ram Baran Yadav also has an important role in ending this transition. Whatever his political background, he is everyone’s president. The Interim Constitution 2007 has made him the protector of the Constitution. The first sitting of the Constituent Assembly on May 28, 2008 amended the article 36 of the Interim Constitution by adding sub-article 3 which states that ‘To protect and follow the constitution will be the main responsibility of the president’. However, whenever the President holds consultations to seek a consensus on peace and constitution, Prime Minister Khanal and UCPN (M) chairperson Dahal become suspicious. On the one hand, the leaders decry that the President has become active and is going for ‘coup’, on the other hand, they expect his support. It is the executive’s responsibility to facilitate the peace and constitution-drafting process, the President has no role and should have no role.

Yadav, Khanal and Dahal should give momentum to completing the peace process and finishing the constitution-drafting by taking the opposition parties and Madhesi parties into confidence, which will get back the lost domestic and international trust. For this, the three leaders (President Dr Ram Baran Yadav, prime minister Jhala Nath Khanal, and UCPN (M) chairperson Prachanda) should hold regular discussions and consultations.

In his last meeting on May 2, 2011 with UCPN (M) chairperson Pushpa Kamal Dahal, Congress president Sushil Koirala, and prime minister and UML chairperson Jhala Nath Khanal, the President expressed his concern on the peace and constitution-drafting process. He called the three leaders jointly to Shital Niwas and not only expressed his concern at the present uncertainty and discord but also asked them to seek a solution as soon as possible and provide succour to the people. Last April also, the president had called the leaders of all the political parties to the president’s residence to ask about the peace and constitution-drafting process, then suspicion has been raised about the activities of the president.