There was difference of opinion among the three parties, UCPN (M), Nepali Congress, and CPN (UML), regarding the extension of CA deadline. Congress and UML were in favour of extending the deadline, while UCPN (M) was not in favour of the extension by retaining the Madhav Kumar Nepal-led government. The difference remained until the last day of the Constituent Assembly on May 28, 2010. The parliamentary meeting was scheduled for 11 o’clock in the morning, which could not start because of the dispute among the parties. Mainly UCPN (M), UML, and Congress were the main culprits.

There were several informal meetings between leaders of the three parties in the CA building. There was confusion throughout the day as the senior leaders could not take a decision. The CA did not sit until the evening, which created confusion whether the deadline would be extended or not. Even the party leaders and CA members were not sure about the extension. There was no progress late into the night as the Congress and UML stated that prime minister’s resignation should not be a pre-condition for extending the deadline, instead there should be a ‘package agreement’, and UCPN (M) stated that there would be no sense in extending the deadline if the prime minister is not going to resign. Amidst the confusion after the failure of many formal and informal meetings among the parties to come to a conclusion, UCPN (M), Congress, and UML reached a 3-point agreement at 11 o’clock at night.

The first article of the 3-point agreement states, ‘We commit to move forward by forging consensus and cooperation to meaningfully conclude the peace process by immediately accomplishing the remaining works and fulfilling the historical responsibility of drafting the new constitution’. The second article states, ‘Though there has been significant progress in constitution-drafting, however, it has not been completed; therefore, we agree to extend the CA deadline by one year’. The third article of the agreement, signed by UCPN (M) chairperson Pushpa Kamal Dahal, Nepali Congress president Sushil Koirala, and CPN (UML) chairperson Jhala Nath Khanal, states, ‘To accomplish the above-mentioned responsibilities and tasks as soon as possible, we want make it clear that the prime minister of the present coalition government is committed to resign immediately to form a national consensus government, and move forward’.

Immediately after the agreement among the three parties, UCPN (M) leaders had said that immediate resignation implied with five to seven days. Congress expressed its understanding that meaningful conclusion of the peace process by completing the related remaining task meant a clear framework for integration and rehabilitation of Maoist combatants, dismantling the paramilitary structure of the YCL, return of seized land and property, and implementation of past agreements. UML also interpreted the agreement along the lines of Congress.

A practice of making agreements and interpreting them to suit their needs has become the mode. The same was true for the 3-point agreement also. The parties started to interpret the agreement differently after the second article was implemented. In the meeting of the Council of Ministers the next day, prime minister Madhav Kumar Nepal said, ‘The agreement was to open the way for a national consensus government only after a clear framework of the peace process and draft of the constitution was ready’. However, UCPN (M) vice-chairperson Narayankaji Shrestha claimed that the agreement was for the prime minister to resign in two to five days and the issue of peace process was not related to the resignation of the prime minister.

Amidst the confusion surrounding the agreement, prime minister Madhav Kumar Nepal consulted the 10 coalition partners in the government and the 19 parties in the Constituent Assembly. In both the meeting, prime minister claimed that there was no secret agreement with UCPN (M) with regard to the 3-point agreement and there was an understanding to form a national government only after agreement is reached on the peace process. The coalition parties and other supporters also suggested to resign to pave the way for a national government only after an agreement on the peace process. There was a meeting of UCPN (M), Congress, and UML while the dispute was ongoing but without any agreement. Congress and UML stressed on the implementation of the first two articles of the agreement, and UCPN (M) insisted on the resignation of the prime minister.

The UCPN (M) standing committee accused Congress and UML of not following the 3-point agreement and creating an atmosphere of distrust with their activities. After the standing committee of May 17, 2010, spokesperson Dina Nath Sharma issued a statement to clarify the agreement, ‘There was an internal agreement that the prime minister will resign within five days to ensure an atmosphere for consensus and other issues would be gradually resolved’.

There were attempts to interpret and clarify the agreement to suit the needs both within and outside the parties. UML standing committee stressed on implementing issues related to the peace process before the resignation of the prime minister. The next meeting of UCPN (M), Congress, and UML could not make any headway. UCPN (M) objected to the statements of Congress, UML, and the prime minister. It expressed its dissatisfaction at the consultation with smaller parties and for creating adverse atmosphere against the spirit and essence of the agreement. ‘The agreement was for the prime minster to resign first, then to move forward on the peace and constitution-drafting process seeking consensus’, stated UCPN (M). In the meantime, parties in the government and outside tried to make their presence felt. The meeting on May 31, 2010, of Madhesi Janadhikar Forum, Tarai Madhes Loktantrik Party, Pariwar Dal, CPN (ML), Rastriya Prajatantra Part, Rastriya Janashakti Party, Chure Bhawar Ekata Party, CPN (Unified), Samajbadi Prajatantrik Janata Party, Dalit Janajati Party, and independent CA member Baban Singh decided to suggest seeking a consensus on the peace process first and only then the resignation of the prime minister.
The UML standing committee came up with a middle-way approach. The meeting on June 1, 2010, tried to clarify that the understanding was to take the peace process and formation of new government in parallel.

After the government, Congress, and UML interpreted the agreement to suit their needs in their consultations with the smaller parties, UCPN (M) also tried to create the atmosphere in their favour by winning over the smaller parties. It asked CPN (Unified), Nepal Sadbhawana, Janata Dal and other parties to turn up the heat on the prime minister to resign. UCPN (M), Congress, UML held a joint meeting to come up with a common interpretation of the agreement, without any result.

UCPN (M) was outraged after the prime minister did not resign even after one week of the agreement. It decided to launch protests after it appeared that the resignation of the prime minister would not be forthcoming and the possibility of a new government grew thin. Its standing committee meeting on June 2, 2010, concluded that there had been regression against the spirit and essence of the agreement and political dishonesty and warned of protests against the government. On the one hand, Congress and UML were aggressive against UCPN (M), and on the other hand, other parties accused it of trying to abandon the peace process by unnecessarily raising the issue of the prime minister’s resignation. And UCPN (M) warning of protests further angered the parties. Congress and UML held a meeting to discuss the decision of UCPN (M) and concluded that announcement of protests while attempts were made for consensus was dishonesty on the part of UCPN (M). After the meeting, Congress leader Arjun Narsingh KC said, ‘UCPN (M) is trying to back away from the peace process. To form a national government after agreement on the peace process is our bottom-line’.

After there was no agreement on the interpretation and implementation of the agreement, Congress and UML started to seek a package agreement. In the meeting on June 8, 2010, they proposed to take the peace process, constitution-drafting, and government formation simultaneously and integration of Maoist combatants in four months. UCPN (M) did not accept the proposal. UCPN (M) leader Deb Gurung said, ‘We do not agree to the proposal prepared by Congress and UML’.
There was a big difference regarding whether the first or the third article of the agreement when the second article had already been implemented. This created another obstacle on the confused political scene. The political parties did not show any flexibility despite growing political apathy. Congress president Sushil Koirala made it clear, ‘We do not accept that the resignation should come first. Immediately after the first article is implemented, the resignation will be forthcoming’.
The issue became more complex as the three parties interpreted the agreement in their own ways. Despite their own interpretations and positions, parties showed interest in who would lead the next government. In the Congress parliamentary party meeting two days after the agreement, there was vocal calls for Congress leading the next government. the CA members stated that they raised the issue of Congress leading the next government because UCPN (M) and UML leadership cannot lead in the peace process and constitution-drafting.

Though the government led by a senior UML leader was going to fall, its leaders were eager for the prime minister’s post. After the meeting with Congress on June 8, 2010, UML chairperson Jhala Nath Khanal said they were open to leadership. He said, ‘After consensus is reached on the peace process, there will be immediate resignation of the prime minister and formation of consensus government’. The meeting UCPN (M) officials on June 10, 2010, decided that the national government would be led by its chairperson Pushpa Kamal Dahal, which angered Congress and UML. They said, ‘The UCPN (M) decision has constricted the agreement and created obstacles for consensus’.

While there was dispute about implementing the agreement, the work of drafting the constitution came to standstill. Prime minister Nepal, UCPN (M), Congress, and UML were more focused on making the agreement favourable towards themselves instead of on drafting the constitution. While the dispute was rising, Madhav Kumar Nepal resigned on June 30, 2010. There had been no work on the peace process as UML and Congress wanted nor was there a consensus among the parties as the prime minster wished. These developments show that the parties do not keep in mind the long-term considerations and consequences and spend time on resolving issues arising out of their tendency to focus on intangible issues. The tendency of leaders to reach agreements which they can interpret to suit their needs and leading to problems in implementation has created further complexities.

Will the pluralism-based federal democratic republic, specified in the Peace Agreements and Interim Constitution-2007, be overshadowed in the new constitution? The UCPN (M)-advocated views on executive, legislative, and judiciary are starting to raise such questions, which cannot be swept aside as they come from the largest party in the CA. Its proposal on legilstative resembles more closely those of China, North Korea, Cuba, and other communist countries. It not only wants to name the legislative “people’s representatives” but it also seems to emulate the workings, authority, and structure of the “people’s congress” of China.

Perhaps due to influence of the communist countries and their stress on the word “people’s”, the UCPN(M) exhibits affinity for its Nepali equivalent “jana”, and they seem to use this word in “people’s constitution”, “people’s representatives”, “people’s court”, “people’s struggle”, “people pressure”, “people’s singer”, etc. If their submission to the Committee for Determining the Structure of Legislative Body that “people’s representative will be highest and all-powerful body of the state” (see box) is any guide, they do not seem to be in favour of check and balance between the different organs of the state. According to the proposal, the courts will also be under the “people’s representative”. The government will be controlled by a “permanent committee” selected from the “people’s representatives” without whose approval, the government cannot even issue ordinances.

The draft report submitted to the CA by the chairperson of the Committee for Determining the Structure of Legislative Body Ramesh Rijal includes party proposal from the UCPN (M) and individual proposals for CA members of Madhes Janadhikar Forum and UML CA members. Forum CA members Om Prakash Yadav, Bijaya Kumar Yadav, and Renu Kumari Yadav have proposed the view that election to the House of Representatives should be based on the population to a total of 76 members, removal of single transitional voting system, and the vice-president should chair the national assembly.

Similarly, UML CA member from Jumla Devi Lal Thapa has proposed that population and electoral districts should be based on the geographic proportionality should be the basis for direct elections. He has requested that the phrase “based on population” should be replace by “based on population and geographic proportionality”, and “backward class, region” by “extremely backward Karnali, backward region, and backward class”. Other UML members Yashodha Devi Adhikari, Shila Katila, and Juli Kumari Mahato have proposed the insertion of “elections to the house of representatives should include a minimum of 50% candidature to women”, and “women’s representation should be assured” in the national assembly.

Differences in Other Committees

The National Interest Preservation Committee was tasked with preparing a draft report on national interest and defence and its chairperson Amik Sherchan submitted the concept paper and preliminary draft to the CA on 22 May 2009. The NC and UML CA members put note of dissent after the Committee proposed that “It will be the duty of everyone above 18 years of age to enlist in the army and serve the nation as called upon by the state”. They argued that such provision would further militarise the nation. They also urged that words such as “people’s war” and “people’s liberation army” be replaced with the terms from the Comprehensive Peace Agreement “armed conflict” and “Maoist combatants”.

After no solution was found in five days of discussions, the issue was sent to the Committee for Suggestions and Directions which was formed by the CA under Laxman Lal Karna as the coordinator to sort out the disagreements and suggest solutions. But even after three months, the Committee could not decide on whether to write “people’s war” and “people’s liberation army”, and it was mentioned in the report to be decided later, according to him. He said that instead of compulsory military training for anyone above 18 years of age, it was agreed that it will be included as optional educational curriculum. There was an agreement in the Committee to form Military Service Commission and Police Service Commission. After Karna became a minister, Agni Prasad Kharel took over as the coordinator, but it also has not solved more than three disagreements, which it has already sent to the Constitutional Committee. The CA spokesperson Mukunda Sharma informed that there remain a few disagreements in the Committee for State Restructuring and Distribution of State Power. (16 September 2010)

Many meetings of the Committee for Determining the Base of Cultural and Social Solidarity remained inconclusive over the official language. After “The language of the central government will be Nepali in Devanagari script” was included in the draft report, Forum CA members Hari Narayan Yadav, Muga Lal Mahato, Jaya Ram Yadav, Karina Begam, and Savita Yadav; Tarai Madhes Loktantrik Party member Kabindra Thakur; and Sadbhawana Party member Gauri Mahato Koiri wrote notes of dissent “Khas and Hindi languages in Devanagari script should be given the status of the official language of the central government”.

The UCPN (M) had remained silent on the dispute of whether Hindi should be an official language, but its 17 CA members in the Committee for Determining the Base of Cultural and Social Solidarity wrote a note of dissent arguing for multilingual policy. They have stated, “No single language should be specified as the official language of the state, local government or the courts, or lingua franca. Instead, a policy of multilingualism should be adopted”. They have suggested that Khas, Magar, Tamang, Tharu, Kirant, Limbu, Maithili, Bhojpuri, Awadhi, Gurung, and Nepal Bhasha should be the common language of the federal, state, and local government and to be used in the government and courts. They have suggested the use of an interpreter for this.

In the suggestions to the Committee, the Nepali Congress, UML, RPP, RPP-Nepal, CPN (ML), Rastriya Janamorcha, Nepal Majdur Kisan Party, Samajbadi Prajatantrik Janata Party, Pariwar Dal, Loktantrik Samajbadi Dal, Chure Bhawar Rastriya Ekata Party have suggested to make Nepali with Devanagari script as the official language for use in the central government. However, UCPN (M), CPN (Unified), and Nepa: Rastriya Party have favoured a multilingual policy. Forum, Tarai Madhes Loktantrik Party, and Sadbhawana Party have proposed that both Nepali and Hindi should be the official and contact language of the federal government.

In the voting for the draft report in the Committee for Determining the Base of Cultural and Social Solidarity on the use of “armed conflict” or “people’s war”, the UCPN (M) got only 12 votes out of 42. Yet, the UCPN (M) had insisted on writing “people’s war” in its note of dissent. The process of voting to settle disputes in the thematic committees was started in this Committee. Voting took place only in the Committee for Determining the Base of Cultural and Social Solidarity, Constitutional Committee, Committee for State Restructuring and Distribution of State Power, Judicial Systems Committee, and Committee for Determining the Form of Government. These series of voting had created huge disagreements by the time voting took place in the Committee for Determining the Form of the Government, and yet, the Committee could not prepare its preliminary concept paper and draft report, and also resulted in a scuffle between the Committee chairperson Shambhu Hajara Dusadh and Energy Minister Dr Prakash Sharan Mahat, and they were not speaking terms after. Both Dusadh and Mahat are from the Nepali Congress.

The Committee for Determining the Structure of Constitutional Bodies has recommended that 11 commissions be formed: 1) Commission for Investigation of Abuse of Authority, 2) Commission of Auditing, 3) Civil Service Commission, 4) Election Commission, 5) National Human Rights Commission, 6) National Women’s Commission, 7) Dalit Commission, 8) Indigenous Janajati Commission, 9) Commission for Interest Preservation of Minorities, Marginalised, Backward Areas, 10) Madhesi Commission, and 11) Muslim Commission. However, the Committee report is not without disputes where CA members from different parties have approved the report with notes of dissent. CA member from Rastriya Janamorcha and UML CA member Bhanubhakta Joshi have written notes of dissent. “Our party opposes the fact that the country has become a federation and naturally I am extremely opposed to the formation of different commissions recommended by the report, hence I have written a note of dissent,” writes Pun. UML member Bhanubhakta Joshi has written a note of dissent arguing the appropriateness of replacing “federal …. commission” with “national ….. commission”.

The members of the Judicial Systems Committee also disagreed on the future judiciary and its management. When the Committee chairperson Prabhu Sah Teli of UCPN (M) tried to include the judiciary under the elected parliament in the preliminary draft report and concept paper, then the issue was divisive. A large mass believes in an independent judiciary and keeping it under elected parliament risks judicial/constitutional supremacy and opposed the proposal, but it was passed by Maoist majority in the Committee, and Nepal Bar Association strongly objected to this report. While the Nepal Bar Association opposed the provision of possibility of appointing Chief Justices of the Supreme Court outside of judiciary, the political parties were opposed to it, but they were limited to writing notes of dissent in the Committee.

Regarding whether the justices should be should given reappointments or take oath under the new constitution during the transition, 19 CA members from NC, UML, RPP-N presented a united stand. They had argued that since the reappointment of the justices is also tied with the officials of other constitutional bodies and hence the issue should be decided together and this jurisdiction falls under the Constitutional Committee, so this should not include in the draft report. In their note of dissent, they have also urged that there should be a mechanism to set the qualification of the Chief Justice and appointment for justices of the state/provincial, Supreme/High Courts, and the constitution and laws should be interpreted by the Supreme Court rather than any committee of the parliament.

Moreover, the Forum CA members Akwal Ahmed Shah, Abhishek Pratap Shah, and Surita Kumari Shah wrote a note of dissent urging a constitutional court to be set up to interpret and settle disputes and issues regarding the national government, human rights and citizen interests, and politics.

The members of the Committee on Natural Resources, Financial Rights, and Revenue Sharing comprise industrialists, economists and fiscal experts as well as indigenous leaders. This Committee also held discussions and consultations with experts before preparing its preliminary concept paper and draft paper. The disagreement mainly centred on whether the policy on natural resources should give primary importance to the local people, and it was finally included in the report to give primary importance to the local people. The note of dissent not only came from members from industrialist and business community background but also from other members. CA member Rajendra Kumar Khetan wrote a note of dissent arguing for fair compensation to any appropriated land during land reforms; CA members Binod Kumar Chaudhary and Diwakar Golchha urged for a legal provision to provide compensation for any appropriated land during land reform. CA member Surya Bahadur K.C. also wrote a note of dissent. Members from NC, UML, Forum had also written notes of dissent supporting the proposal to provide compensation for appropriated land. The UCPN (M) CA members, however, deviated from the issue and in their note of dissent, they argued for inclusion of “outcome of people’s war, Madhes movement, and movements from 2007 BS” in the preamble.

Tarai Madhes Loktantrik Party CA members Jitendra Prasad Sonar and Hem Raj Tated wrote a note of dissent urging the rights of the state government to collect personal and institutional income while revenue sharing between the centre and the states. However, Binod Kumar Chaudhary argued that the right collect incomes taxes should rest with both the federal and state governments.

The Committee on Fundamental Rights and Directive Principles has prepared a comparatively long report. There was a long discussion on awarding citizenship to foreign women marrying Nepali men with several notes of dissent. The Nepali Congress argued for awarding Nepali citizenship through marriage to foreign women married to Nepali men once they renounce their country’s citizenship and if they wish to gain Nepali citizenship. CA members Bhupendra Chaudhary, Chandrika Prasad Yadav, Arbinda Shah, Ganesh Tiwari Nepali, Rajendra Mahato, Tilak Bahadur Thapa Magar, Lila Nyaichyai, Angdawa Sherpa, Urmila Thapa, Ushakala Rai, and Sunilbabu Panta had submitted different views regarding citizenship.

Rajendra Mahato of Sadbhawana Party wrote a note of dissent for a provision of a “single citizenship” issued by the state government in the name of “single federal citizenship”.

While the 1990 constitution had included 21 fundamental rights, the Committee in its report suggested inclusion of 31 issues under the fundamental rights. While the report was being discussed in the full seating of the CA, the report was burnt outside the main gate of the CA Building in New Baneshwor under the leadership of the some indigenous CA members, alleging non-inclusion of their rights in the report. Regarding fundamental rights, 17 UCPN(M) CA members wrote a note of dissent, “there will be no obstacle to bring an act targeting prevention political party formation whose activities seem against the state, work as a stooge of foreign powers, conspire against the state, promote regressive activities”. Besides them, eight CA Nepali Congress members, seven UML CA members, Chandrika Prasad Yadav, Arbinda Shah, Ganesh Tiwari Nepali, Rajendra Mahato, Tilak Bahadur Thapa Magar, Dal Kumari Sunuwar, Lila Nyaichyai, Gagan Kumar Thapa, and Sunilbabu Panta also submitted individual notes of dissent. Nyaichyai of Nepal Majdur Kisan Party wrote a note of dissent that the fundamental rights should not prevent carrying out of capital punishment for heinous crimes.

There were elections in 98 issues in the Constitutional Committee. (see box) which box, not clear. And it will be better to mention and write up and analysis. The Committee was supposed to submit its report the last after other committees had submitted theirs and include any issues left out by them; however, the Committee violated the regulations by submitting its report before the Committee for Determining the Form of Government and the Committee for State Restructuring and Distribution of State Power had submitted their reports.

The Committee for Determining the Form of Government could not prepare its official preliminary concept paper and draft report and submitted its report including all the notes of dissent to the full seating of the CA. The Committee chairperson Shambhu Hajara Dusadh also accepted its failure to come up with a report. He said, “Though the Committee could not prepare an official report, it submitted its report to the CA with all the notes of dissent”. However, professor Krishna Khanal feels that this Committee failed in to prepare its draft reports. He said, “Other committees prepared draft reports; the Committee for Determining the Form of Government failed to do so”. There were especially strong disagreements and disputes regarding the form of government and electoral system in the Committee. After the UCPN (M) advocated directly elected president and multimember electoral system, other parties including Nepali Congress, UML stood against this proposal. The UCPN (M) suggestion to the Committee while it was in government had mentioned a president elected from the parliament; however, once it was out of power, it reverted back to its earlier stance of directly elected president.

The Committee on State Restructuring and Distribution of State Power held its 127th meeting on 20 January 2010 and decided through a majority to recommend 14 provinces (9 ethnic provinces) with political prior rights and send it to the full seating of the CA. The Committee had reached consensus in all the previous meetings, but it could not agree on the number of provinces. In the eventual voting, the 6-province model proposed by the NC was defeated. Interestingly, two hours before the voting, all the parties were against the UCPN (M); however, at the last moment, UML sided with the UCPN (M), mainly due to Newar and Janajati CA members from UML.

The meetings had proceeded on the understanding that the provinces should be defined based on identity and capability. A sub-committee comprising of Hitman Shakya of UCPN(M), Narhari Acharya of NC, Mangal Siddhi Manandhar of UML, Jaya Prakash Gupta of Forum, Pratibha Rana of RPP to solve the issue of naming and delineating of the provinces. According to Pratibha Rana, a consensus had been reached within the sub-committee to approve both the 14-province and 6-province model for the full seating of the CA after four days of deliberations in the Godavari Village Resort. However, on the last day, Forum CA member Jaya Prakash Gupta walked out of the meeting protesting non-acceptance of Tarai as an autonomous province.

During the voting, Nepa: Rastriya Party member Buddha Ratna Manandhar had voted in favour of the 14-province model. However, he had already voted in the Constitutional Committee, and despite a clear guidelines stating that a member can only vote in more than two committees only if he is a member on them, his vote was recognised. His vote became the deciding vote in favour of the proposal with political prior rights.

There arose many disputes on the restructuring proposals. There was great turmoil within UML. In the full seating of the CA, the UCPN (M) members spoke in favour of the 14-province model while members from other parties spoke against it. Even among the UCPN (M) speakers, though they did not explicitly oppose the 14-province model, they expressed dissatisfaction over demarcation of the provinces. UCPN (M) member Pushpa Bikram Malla, in principle accepting the 14-province model, insisted that his own constituency be kept intact. He has raised objection to the fact that some of the village from his Dhading constituency no. 1 are going to lie in proposed states of Tamuwan (on Gorkha side now), Narayani (on Chitawan side now), and some will be in Tamsaling and asked it be corrected. Speaking in the CA, he said, “Whichever states they are in does not matter, but they should be in one state.”

There is a huge difference among the proposed states. Only 50,000 people live in Jadan, whereas more than 5,000,000 people live in the proposed Madhes-Mithila-Bhojpura-Koch state, which will directly affect the future federal parliament. Therefore, the models are the knots of the disputes. Also, Newa state will be completely surrounded by Tamsaling without any access to the outside, which raises the question of it being suffocated.
There is also the question of how democratic it is to give prior rights to any specific nationality. Only 23 nationalities are included within the autonomous, self-governed, and special areas, which has created another big dispute. The challenge of solving all these conundrums before defining the states remains.

Box Details of the drafts and notes of dissents:

On constitution of federal legislature

The Committee for Determining the Structure of the Legislative Bodies: “There shall be a legislature, to be called parliament, which shall consist of (the Head of the State), and two Houses, the House of Representatives and the National Assembly.”

UCPN (M): “There shall be a unicameral legislature in Nepal to be called Federal Assembly of People’s Representatives. The Executive President, on the basis of Peoples’ Federal Democratic National Republic System, shall be a part of the Legislature.”
The Committee: “The House of Representatives shall consist of one hundred and fifty-one members. Seventy-six of those members shall be elected by direct election, and seventy-five members shall be elected by proportional election. The House of Representatives election shall be conducted via adult-franchising and secret ballots.”

UCPN (M): “There will be 245-member federal assembly of representatives (multi-member constituency system, directly elected and proportional inclusion based on population and geography of women, Dalit, indigenous-Janajati, Madhesi, Muslim communities), which will be the supreme and all-powerful body of the state. It will form, direction, monitor, and supervise all other bodies of the state itself or form mechanism under it to do so. In the absence of meetings of the people’s representatives, a permanent 21-member steering committee with at least one member from all autonomous states will be formed to carry out legislative works.”

On formation of national assembly

The Committee: “The National Assembly shall be a permanent House.”

UCPN (M): “This provision should be removed from the draft as the federal parliament will be unicameral.”

On parliamentary seat vacancy

The Committee: “On the death of a member, his/her resignation, end of the parliamentary tenure, not meeting the qualification set down by the constitution, absence from 30 consecutive meetings without the approval of the concerned house, the seat will become vacant.”

UCPN (M): “As determined by the law, members will be recalled. On such instances also, the seat will fall vacant.”

On oath of office

The Committee: “I (full name of the member of house of representatives, national assembly, state assembly)… being completely loyal to the country and people, do hereby solemnly resolve/swear in the name of God that I shall, with genuine loyalty towards the Interim Constitution of Nepal, 2006, which ensures that state authority and sovereignty is vested in the people of Nepal, truthfully and impartially carry out my duties and responsibilities as the Chairperson/Vice-Chairperson of the Constituent Assembly, putting myself strictly within the limits of the existing laws, always thinking the good of the country and the people in high esteem, without fear, bias, prejudice or ill-will, and I will not divulge the secrets entrusted to me during the course of my work while I am in the office and after I am out of the office.”

UCPN (M): “While taking an oath by the members of the Federal Assembly of People’s Representatives and Autonomous Province People’s Representatives, it is only necessary to take an oath in the name of the people and the country. Therefore, the provision of administration of the oath should be determined on the same basis.”

Restriction of discussion

The Committee: “No discussion shall be held in either Houses of Parliament on a matter which is under consideration in any court of Nepal and makes negative impact in the hearing of the case, and about anything done by a judge in the course of performance of his duties, provided that nothing in this clause shall be deemed to bar the expression of opinion about the conduct of a judge during deliberations on an impeachment motion.”
UCPN (M): “Members of the Assembly may raise a question in regard to individual cases that are under hearing at any court of Nepal. However, there shall not be any formal discussion or decision on it. If the cases is inter-related to the ruling system of the country, having political inter component or issues of public concerned, or question of inconsistency of any law with the Constitution, there shall be a provision to bring this case into discussion and take decision or to form a committee and take a decision on the basis of interpretation of the committee.”

Procedures relating to the conduct of business

The Committee: “If a resolution is passed by either House demanding that of both the Houses be constituted for the purpose of managing the working procedure between the two Houses, resolving disagreements on any Bill, or for any other specified function, a Joint-Committee thereon shall be constituted.”
UCPN (M): “Special Committee of a maximum of 15 members in the Federal Assembly of People’s Representatives.”

Ordinances

The Committee: “If at any time, except when both Federal Houses of Parliament are in session, the Head of the State is satisfied that circumstances exist which render it necessary for him to take immediate action, he may, without prejudicing the provisions set forth in this Constitution, promulgate any ordinance as He may deem necessary. An ordinance thus promulgated shall have the same force and effect as an Act, provided that every such ordinance shall be tabled at the next session of both Houses of Parliament, and if not passed by both Houses, it shall ipso facto cease to be effective; may be repealed at any time by the Head of the State; and cease to have effect at the expiration of six months from its promulgation or sixty days from the commencement of a session of both the Houses.”

UCPN (M): “In the condition that the Federal Assembly of People’s Representatives is not in session, the government may issue an ordinance on the subject that is not provisioned by prevailing laws. The ordinance shall be equally applicable as law, provided that except for development and construction, services and privileges, national security, and to maintain communal harmony in the country, the ordinance shall not be issued. In the case that the government considers necessary to issue an ordinance, it shall be submitted to the Special Committee of the Federal Assembly of People’s Representatives. And if the Special Committee permits the government within the determined time, the government may issue an ordinance. The Ordinance shall be considered automatically repealed, if is not approved, according to rule, by the subsequent meeting of the Federal Assembly of People’s Representatives.”

Constitution of provincial assembly

The Committee: “On the basis of the population density of each particular province, no more than thirty-five members shall be elected to the Federal Assembly. Eighteen members shall be elected by direct election, and seventeen members shall be elected from proportional election. The election of the Provincial Assembly shall be conducted utilizing adult-franchising and secret ballots. Following the direct and proportional elections, in case women do not constitute at least one-third of the elected representatives, law shall be introduced pursuant to the proportional election provision to ensure that at least one-third of the Provincial Assembly representatives are women. Law shall prescribe the method for determining election constituencies and the number of members to the Provincial Assembly.”

UCPN(M): “The shall be twenty-five to forty-five members in the People’s Assembly of Autonomous Province on the basis of cast, language, and availability of natural resources and taking into consideration of the density of population and geography. The election of People’s Assembly of Autonomous Province shall be on the basis of multi-member constituency electoral system. The other matters in this regards shall be as determined by law.”

During the 2006 people’s movement, there was a common understanding among many professionals, retired politicians, NGO workers, human rights workers, lawyers, professors, journalists, artists, and respected independent personalities against the tyrannical rule of the kings and end to the armed conflict. They showed encouraging participation in the peacefully rallies jointly called by the Seven Parties and the Maoists. They did not take anyone’s “side” or stand in “favour” but stood for peace, constituent assembly, and democracy, and went on to form the civil society.

The civil society grew out of difficult circumstances yet encompassed all individuals of different ideologies. But it never had any organisational structure and does not. It never had a formal office, and it does not have one today. Whenever necessary, friends were called and available individuals had meetings wherever was convenient. However, they were all adherents of democracy, human rights, independent media, constituent assembly. Their access to and coverage by the media made their movement larger everyday.

Then, the political parties were forced to face the pressure of the civil society because they were a “loose” nation-wide network, which had a strong peace message. Civil society had become the focus of the people tired of politicians and their activities, and centre of hope and trust for people living under the fear of murderous activities of the Maoists. The people who had not heeded the call for peaceful rallies by the politicians and their activists, and friends of the Maoists suddenly joined the leaders of the civil society in the street protests. Therefore, civil society was powerful, peace-loving democratic pressure group without arms, ideology, and manifesto.

Civil society: past and present

The united civil society that took to the streets during the 2006 people’s movement was not to be seen united after the CA elections, especially during the process of constitution drafting. During the second week of March, 2010, the civil society had organised a 100-hour sit-in in front of the south gate of the CA building demanding “timely promulgation of the new constitution”, but by then the civil society movement had weakened to an extent, which had started after the declaration of republic by the first CA seating, and this was their first time in the streets since then. This sit-in, however, was not powerful, forceful, and participative, and there was no continuity to such events subsequently.

After the elections, some of the leaders of the civil society have got political appointments and cannot speak out, and others must be busy in their own personal works, and this “movement” has become weak and ineffective today. However, this is not only reason for the present state of civil society movement. The main reason is that the some of the leaders of the civil society movement have become close to the state powers and others are waiting for the opportunity. They have been motivated more by self-interest than their responsibility to society. While some are happy to carry party flags, others have developed cynical mindset of “nothing works”. However, this is not civil society and should not be.

In our case, civil society should be the watchdog for peace, constitution, and democracy, for which they need to move forward with common agenda, but they are not focused on this nowadays.

The way the civil society stood united for peace, constituent assembly, and democracy yesterday was really praiseworthy, and today it has no alternative but to come up with a common agenda to complete the peace process. They should be able to point out without fear the transgression of the leaders in breaching the spirit, values, and principles of the Interim Constitution 2007 which was partly a result of civil society pressure. A referee gives warning to players who do not abide by the rules and ejects them from the field if they fail pay heed to the rules. Similarly, civil society is a referee in the game of fluid political and insecure state rule of the country, and a referee should not favour a team or a player. However, our civil society is not only without any agenda, but they are seen to favour various political players; some are believed to be close to the UCPN (M), and some to UML, and some to NC, which is frustrating indeed.

On the one hand, the divided civil society, and on the other hand, “insolent attitude” of the parties towards civil society-raised issues, both are equally to be blamed. If a united civil society castigates the political parties for constitution-drafting, only then the parties pretending to be asleep will be roused. But, a divided and weak civil society will not be able apply pressure to the leaders from constitution drafting.

What should civil society do now?
Civil society has not been able to set a common agenda since the election to the Constituent Assembly. Now is not the time for civil society to become a mute spectator on what kind of constitution to be drafted. They cannot forget their responsibility to the country and society. Instead of speaking out of anger on issue like constitution drafting which will have far-reaching consequences, political parties should be provided suggestion that reflect the reality of Nepal and Nepali society. There is no place ambiguity. Civil society should be able to come out with “blue print” on the future form of government, model of federalism, management/integration of Maoist combatants, human rights, press freedom, judicial supremacy in the new constitution. Otherwise, their legitimacy will end because civil society is independent and it always sides with reality rather than any side or opposition. It is time civil society in Nepal fulfilled this responsibility.

There should have been civil society careful vigil over constitution drafting since 28 May 2008, but it did not happen. It has been their greatest failing because on that day political parties including UPCN(M) were retreating from their commitment to write the constitution in consensus as enshrined in the Interim Constitution by going for majority system instead of politics of consensus, the result of which the constitution-drafting process has come to a standstill.

Perhaps, civil society fell into the belief that the political parties and CA members will write a constitution as per the wishes of the people, but since they are not going to fulfil that responsibility, civil society cannot remain a silent spectator.

Civil society should be able to provide “tips” to institutionalise the democratic republic declared on 28 May 2008 as per the Interim Constitution 2007. Civil society should not keep people perplexed. Whoever makes a mistake should be clearly pointed out and civil society leaders should be free of “generalisation culture” of blaming the leaders for everything.

As the time for writing the constitution is slipping away, it is about time civil society focuses its attention towards it. The Interim Constitution-defined time of two years and six months of additional one year have already passed. However, there have not been any understandings on fundamental aspects of the constitution among the parties. There is every possibility of increasing political chaos and anarchy. There are signs of transition being prolonged. The civil society leaders could not imagine the dangers to be faced by the country on 29 May 2010.

Therefore, civil society should not forget its responsibility towards peace and constitution drafting. Yesterday, civil society suggested the parties and their leaders to “enter the federal democratic republic” and now why cannot they pressurise the leaders with a common agenda on its implementation and management? If the civil society leaders fail on this, the existence of civil society movement will be in peril.

The role of civil society for constitution drafting and completing the peace process has been very weak. Therefore, the civil society leaders should fulfil their responsibility towards country and the people by reactivating their civil society movement once again. Instead of taking sides but acting with selflessness, it should resolve intraparty disputes among the political parties. Civil society leaders should not hold off any longer on speaking about form of government, structure of federalism, management and integration of Maoists combatants, issues of inclusion and role of the parties.

Although there have been discussions on the reports prepared by the ten thematic and the Constitutional Committee of the Constituent Assembly (CA), the constitution-drafting process has not been proceeding ahead. Despite extensive debate in the CA meeting, the main reason for this halt in the drafting process is that all the reports of the thematic committees have not been endorsed by the CA in order to take them to the Constitutional Committee. All the differences that the political parties had while preparing the report in the committees of the CA were clearly visible in the meeting of the CA as well. The CA could not endorse the reports because the parties only debated but never reached a consensus. As a result, the committee reports could not come to the CA. In spite of a number of differences, the political parties came to a consensus in sending the reports prepared by the Committee on Natural Resources, Financial Rights and Revenue Sharing, the Committee for Determining the Structure of Constitutional Bodies, and the Committee on the Protection of the Rights of Minorities and Marginalised Communities, to the Constitutional Committee. The role played by the Special Committee for Studying Reports for building the inter-party consensus is substantial.

There is a provision in the clause 82, sub-clause 9 of the Constituent Assembly Regulations 2008 that any suggestions or directions from the Assembly after the Assembly discussions on the report concerning the preliminary draft containing the concept paper presented by the constitutional and thematic committees should be endorsed by the Assembly and then forwarded to the Constitutional Committee. Based on this provision, the CA had formed the Committee for Studying Reports to prepare reports and suggestions that the CA should give to the Constitutional Committee, integrating the concept papers and preliminary drafts through clause 89 of the Constituent Assembly Regulations 2008. There were 15 members in the committee formed by the twenty-ninth meeting of the CA held on May 27, 2009: Agni Prasad Kharel (Coordinator), Aatmaram Prasad Shah, Ekraj Bhandari, Narayan Khadka, Prakash Chandra Lohani, Pratibha Rana, Prem Bahadur Singh, Barsha Man Pun Ananta, Yubaraj Karki, Radheshyam Adhikari, Laxman Lal Karna, Bishwabhakta Dulal, Brijesh Kumar Gupta, Sarita Giri, Sunil Prajapati.
The main function of this Committee is to study the concept papers and preliminary drafts presented by the thematic and constitutional committees and to give necessary suggestions to the Chairperson about them. To make the work of the committee effective, the following work areas were assigned:

Committee’s Work Area

After studying for eight months, on February 3, 2010, a report, including the suggestions and directions to the Constitutional Committee, over the report of the Committee on Natural Resources, Financial Rights and Revenue Sharing was submitted to the Honourable Chairperson. Similarly, the Study Committee presented another report to the Chairperson, including suggestions and directions to the Constitutional Committee, over the report of the Committee for Determining the Structure of Constitutional Bodies on March 2, 2010; and over the report of the Committee on the Protection of the Rights of Minorities and Marginalised Communities on March 28, 2010.

The Study Committee on the report of the Committee for Determining the Structure of Constitutional Bodies

The Study Committee concluded on the report of the Committee for Determining the Structure of Constitutional Bodies that as the form of the to-be Nepali government has been decided to be federal, there is a need of a financial commission which works for the conservation, preservation and distribution of the natural resources and biodiversity, and fair distribution of financial resources. However, the Study Committee concluded that the necessity, formation, work, responsibilities and rights of the commission should be clarified. The study also pointed out that despite the Constitutional Committee being there to devise the preamble of the constitution; the Committee for Determining the Structure of Constitutional Bodies has also formulated a preamble.
Similarly, the Committee has also clarified on the issues on which the parties could not reach a consensus in the discussions at the CA. According to the Committee, the following are the points in which no consensus was reached upon:

The major suggestions that the CA should give on the report of the Committee for Determining the Structure of Constitutional Bodies:

The study has not found a single issue within the jurisdiction of the Committee, as stated by the Constituent Assembly Regulations 2008, untouched. But the Committee has also commented on issues falling under the jurisdiction of other committees. The report of the Study Committee mentions that propositions that fall under the jurisdiction of the Constitutional Committee has been repeated in this Committee. The rights to freedom, environment, drinking water, food, property, against exploitation, residency, and employment, that fall under the Committee on Fundamental Rights and Directive Principles, have been repeated, shows the report of the Study Committee.
Some of the issues and topics that were included in the report of the Committee on Natural Resources, Financial Rights and Revenue Sharing, but fell under the jurisdiction of other committees were: fundamental duties, state’s responsibilities, principles and policies, and directive principles and policies. The Study Committee mentioned that these fall under the Committee on Fundamental Rights and Directive Principles.
Similarly, National Reserve Fund (NRF); Finance Bill; the expenditure, revenue and expenditure estimation from the NRF; expenditure over the NRF; Allocation Act; additional estimation; advance expenses; credit expenses; special system for revenue and expenses; Emergency Fund; and Act concerning financial procedures fall under the Committee on Determining the Structure of the Legislative Body. Likewise, the ratification, integration, approval and support of treaties and agreements fall under the National Interest Preservation Committee.

Issues of Differences in the Report

The study shows that no consensus has been reached amongst the political parties in the descriptive comment on bio-diversity. Whether the first point of the initial draft proposal should mention ‘the registration and conservation of bio-diversity’ or not; the phrase ‘sustainable development and conservation’ to be added in the second point or not; and the phrase ‘competitive democracy’ should be replaced with ‘people’s federal democracy’ in the fourth point or not. Similarly, no agreement has been reached on the fourth point again where either ‘competitive democracy and socialism-oriented economy’, or ‘socialist republic and socialism-oriented economic system’ should be included. On the fifth point, there is disagreement on whether or not to add ‘local’ in front of the phrase ‘involvement of indigenous and ethnic groups in utilising the natural resources and tools’; and to replace ‘prior right’ with just ‘right’.
Likewise, no agreement is there in the following as well: The article 3 of the Economic Rights should mention that there should be people’s control in the drinking water sources; in article 4, Right to Food should not be included until the meaning of the phrase ‘food rights’ has been clarified; that the state should ensure the right to food and that the farmers should have the prior rights over food; and in article 5, Right to Property: ‘Any person would be compensated for his/her property while enacting the scientific land reform, or while confiscating his/her property for public welfare, or while exercising any rights over such property. The degree of such compensation would depend upon the prevailing law.’
Clarification is needed in whether the state should formulate laws and provide housing to everyone, as per article 7 Right to Housing, or this falls under the Right to Property. It should be mentioned that the elderly, the disabled and women should get the preference in Right to Housing. Similarly, article 8, Right to Employment is unclear and contradictory. The article 8 guarantees every citizens right to live respectfully and have employment as per one’s qualifications; the state should provide unemployment benefits; and the rights of the employer should also be guaranteed. The Study Committee mentions that there is disagreement within the parties on providing unemployment benefits, and preference in Right to Employment should be given to the indigenous and ethnic groups, the poor, Muslims and Dalits.
The main suggestions and directives that the CA should give on the report of the Committee on Natural Resources, Financial Rights and Revenue Sharing are:

The Report Study Committee has mentioned that the Committee on the Protection of the Rights of Minorities and Marginalised Communities has left some important issues unaddressed in its report. The Study Committee mentions that the report has not properly defined what ‘minorities’ and ‘marginalised communities’ are; the constitutional provisions for the upliftment of the minorities and marginalised communities and the effective implementation of that has not been recommended; and no review of the provisions as mentioned about the minorities and marginalised communities in the past constitutions has been done.
Similarly, the Committee has identified some issues that fall under the jurisdiction of the Constitutional Committee repeated in the preamble and preliminary draft, including the definition of the nation. Some of the issues that lie under the Committee on Fundamental Rights and Directive Principles are repeated in the preliminary draft submitted by the Committee on the Protection of the Rights of Minorities and Marginalised Communities. These are: provisions for citizenship, right to equality, right to education and culture, and right to religion. The Study Committee shows that the provision of national language has also been repeated in the preliminary draft.

Major issues left unaddressed and without consensus

The major suggestions and directives that the CA should give on the report of the Committee on the Protection of the Rights of Minorities and Marginalised Communities:

The Rights of the Minority Groups:

The Rights of the Marginalised Communities:

Based on the above-mentioned criteria, the following should be the definition of marginalised communities: ‘Marginalised communities should imply those individuals who have been made politically, economically and socially downtrodden; who have not been able to enjoy or have been denied services and facilities due to discrimination, oppression and geographic remoteness; and those who are ranked lowest in the human development index. The severely marginalised and endangered communities also fall in this category’.

Finally,

On the basis of the report of the Study Committee, the Constituent Assembly sent three reports to the Constitutional Committee with necessary directives. In a state where politics is in limbo due to the differences amongst the parties in hundreds of issues, consensus in just three reports should be taken as an important achievement. Maximum effort has been exercised to seek consensus amongst the parties; but nothing has been achieved. There has been no serious talk between the top leaders of the political parties about the serious issues of the constitution. While it is always good to try to make consensus in political decisions, nothing substantive has been brought out. Due to the lack of consensus in the Study Committee, the CA could not send adequate suggestions and directives to the Constitutional Committee. This has further raised scepticism on the constitution-drafting.

Discussions with common people at the local level on issues of restructuring, inclusiveness, form of government seem pragmatic because the people neither express any trace of resistance/rigidity nor antipathy out of prejudice. They just wish for the social harmony based on centuries-old co-existence of different ethnicities, religions, communities and groups to continue. They are aware and alert towards this. In some places, people see the danger of disintegration of the country if federalism is not supported by all. Everybody seems positive on federalism except the leaders and activists of Rastriya Janamorcha Nepal, with their only concern being that federalism should be “handled” properly.

At the moment, Nepali society is divided in the discourse and discussion along “this and that view, thought, secular and religious, this and that caste”. The issue of federalism is being limited to the opposing viewpoints among the divided groups. Nobody owns the issue. This is hurting the cause of federalists and benefiting those opposing it. Therefore, the federalists should be pave the way towards it by being aware of and alert to the dangers present.

State restructuring

People at the local are also divided along similar lines to the central leadership of the parties and civil society, and intellectuals. While some expressed views similar to their mother party lines, others also talked about frustrations, hardships and shared experiences of working at the local level. The people of Hemja in Kaski stated that if there is state restructuring, economic condition should be considered as important criteria. In a meeting at Sami Chautara in Hemja on 2 December 2008, the local party representatives, teachers, social workers, women, Dalits expressed a variety of opinions. They agreed that most of the wars and violence had been committed in the name of religion or ethnicity and/or over economic resources. They feared that the future states might be involved in disputes over resources as well and expressed the need to be alert to this end and move ahead with caution.

The country is become divided over whether states should be based on ethnicity or not. Krishna Nepali from Hemja has to say on this, “Nepal is a country of mixed populations of different nationalities. No single nationality has a majority in the present districts and zones of Nepal. If ethnic states are made, the majority in the state will be occupied with only forming the government and ensuring its longevity. For example, if this region is made Tamuwan and Gurung are given prior rights, they might drive out others. There have been activities to psychologically pressurise the hill migrants to return to the hills. Therefore, it will be better to make the present development regions into states.”

Min Bahadur Thapa from the same village is energetically working for the welfare of the Chhetri. He only joined the Chhetri Samaj (Chhetri Society) after other castes/ethnicities advocated ethnic states and started lashing out against them. However, he is against ethnic, regional, and linguistic states. He says, “It is more appropriate to restructure states based on population instead of ethnicity, regions, or language”. Otherwise, he says that Chhetris, who have majority in six out of the present 14 zones, will also seek recognition with rights.

There has been no agreement on the demands for “One Madhes, One State”, and there have been claims and counterclaims between those who are for and against it. Two journalists Purna Basnet and Ajit Tiwari had interacted with the local people in Sapahi, Janakpur the birthplace of Sita, in the second week of December 2008. People were found to be divided similar to Hemja. Some advocated for “One Madhes, One State”, while others maintained that the Pahad (hills)-Tarai relationship should not be broken. However, there was clear agreement that Nepal will not survive without mutual support of Pahad and Madhes.

Surya Narayan Yadav, headmaster of BP Koirala High School from Sapahi, birth place of President Ram Baran Yadav, near Janakpur town and predominantly Maithili-speaking area, was not in favour of a separate Mithila state. Arguing that creating states based on ethnicity and language might invite communal violence, he said, “If Mithila and Tharuhat states based on ethnicity and language are created, the cordial warm friendship from Tarai to mountains will be broken. Therefore, states should be regional.” Immediately, Madhesi Janadhikar Forum activist Satya Dev Yadav countered that his party will not give up the demand of “All Madhes, One state”. Forum activist Yadav reasoned that there is no alternative to three separate states of mountains, hills, and Tarai.

We met with representatives of 1.1-million strong Muslim population to understand their views on the demands ethnic states with right to self-determination in a hotel in Bagbazar on 21 February 2009, where journalists, professors, lawyers, justices, businessmen, ambassadors, leaders from the Muslim community were present. When we asked, “What are your views on ethnic states?”, their unanimous response was, “We are not for ethnic states because it will not be good for Nepal”.

According to Muhammadin Ali, lawyer and chairperson of Legal Research and Advice Centre, the Muslim community is not for any ethnic- or religion-based states. Ali said, “We are alert that the country should not disintegrate in the name of federalism. There is increasing fear of disintegration from the mountainous and Tarai regions”. He suggests three states each in Pahad and Tarai and two in the mountains to avoid this eventuality. However, he believed that while doing so, we should not forget the interrelationship between the mountains, Pahad, and Tarai. Former ambassador to Saudi Arabia Hamid Ansari asserted that religion should also be a basis for restructuring as Hindus, Muslims, Christians, or other religion followers will not abandon their religious ways. Hindus go to Banaras and Panchdham on pilgrimage, Christians Vatican, Buddhist Lumbini, Muslims Mecca Medina. Ambassador Ansari says, “Every religion has some place of pilgrimage; therefore, secularism does not mean end of religious way of life. Hence, if this issue is not included in the agenda of state restructuring will invite problems”.

How should state restructuring be carried out? Should there be ethnic states or not? What does the large population of Muslims in five Tarai districts think of “All Madhes, One State”? We asked these questions to Supreme Court Justice Tahir Ali Ansari. He expressed his views more as a Nepali citizen rather than the Honourable Justice he is. Justice Ansari, who has travelled from Mechi to Mahakali and from north to south and seen various customs, culture, traditions, mentioned that all of these are different from one place to another. The issues of Seti and Mahakali are not the same as Rapti and Lumbini, and Lumbini’s is different from Narayani and Bagmati. Similarly, the issues of Narayani differ from Koshi and Mechi. In such context, Justice Ansari said he could understand where the demand for “One Madhes, One State” came from, which is not feasible. He further added, “The country should not be restructured into many units under federalism and it should not be ethnic federalism. In the whole of Nepal, every nationality itself can be a minority. In broader nepali context, Chhetri, Bahun, Newar, Rai, Kirant, Muslim are all minorities”. People from the remote hills, plains of Tarai, and mountains all share the safe fear of disintegration if there is ethnic federalism.

Form of government

Another issue at the centre of discussion is form of government. Even after two and half years of CA elections, there has been no agreement among the top leaders of political parties on the form of government. The CA is also divided whether the prime minister or the president should have executive authority. There has been no settlement yet. While some want prime ministerial system, others presidential. It is not only Kathmandu that has been divided on this issue, even the citizens of remote villages are divided and confused.

UCPN(M) local activist from Hemja Madhav Sharan Poudel wants a powerful president who will be directly elected. But secretary of Aama Samuha (mothers’ group) from the same place wants prime ministerial system. She adds, “I think prime ministerial system is better than presidential system, where women can also become president like in India”. She finds support in Krishna Nepali, member of Mukti Samaj (freedom society). According to Nepali, there would not have been a Dalit president in India if there had not been an executive prime minister there. Therefore, to ameliorate the conditions of women, oppressed, Janajati, minorities or the weak, prime ministerial system is more appropriate than presidential system.

When journalist Sudarshan Ghimire reached Doti-Dipayal on 22 February 2009, he was told by the teachers, employees, businessmen, traders, and socio-political workers about the issues to be included in the new constitution: “Tarai-Pahad should not be divided”. But they were also divided on the form of government just like elsewhere. While some strongly stood in favour of executive president with rights, others wanted prime a minister elected from the parliament. Some also favoured directly elected prime minister. In teacher Purna Joshi’s words, “we have the experience of the failure of majority rule and minority opposition. This does not ensure development; instead time is wasted on formation of government and trying to bring it down. Therefore, presidential system is good.” In contrast to this view, Laxmi Roka Magar, who had resettled in Doti from Rolpa, felt that directly elected prime minister is better. She argued that if the intention of the leadership is corrupt, then however good a system, it does not matter.

Marichman Tamang, a teacher from Kakani in Sindhupalchok, wants prime minister elected from the parliament. He feels that there will be no one correct a mistake made by an executive president. But in the prime ministerial system, if the prime minster errs, the president can take over.

Inclusive/access of all to state

The indigenous Janajati, Dalit, Madhesi, Muslim communities wish to see their recognition in the new constitution. They have been demanding a guarantee in the constitution of inclusiveness and participation as they have been excluded for centuries by the state.
In the 21 February 2009 interaction with the well-informed individuals of the Muslim community, the chairperson of Muslim Journalists Associate Rahamatulla Miya said, “We basically want recognition. The state should not practice discriminatory policies after the new constitution like the former regimes. There should be constitutional guarantee on reservation and Muslim Personal Law”.

In the meetings and talks with indigenous Janajati, Madhesi, Muslim, and women groups, one finds a common thread; they all say the inclusion should not be left out. The issue of inclusion, though incipient for a long time, has become a major one after the elections to the Constituent Assembly. It has gained a kind of a momentum. In the process of meeting people from remote regions, in a meeting in Kakani, Sindhupalchok, on 19 March 2009, the people were enthusiastic about issues to be included in the new constitution. Though their opinions differed on state restructuring, naming them, and form of government, there was unanimity on the issue of inclusion. They seemed to concur on the need by the state to include backward nationalities and communities in the various organs of the state.

According to the secretary of local Sat Dhara Yuba Jagaran Club (youth club) Munsing Pakhrin, it is necessary to provide reservation to Dalits, indigenous Janajati, women, Madhesi and other backward communities. Otherwise, people will not perceive the change. Pakhrin said that there should be reservation in education, healthy, administration based on population. Agreeing with Pakhrin, another youth from the same village Surya Tamang said, “Inclusion should not be left out of the new constitution because everyone is familiar with this, and leaving this out now would be a big disaster”.

Rajendra Yadav from Sapahi said that the rights of Musahar, Tatma, Khatwe, Dusadh, Chamar, and others should be mentioned in the new constitution, while Muslim Salim Safi said expressed the view that the constitution should be written by including the recognition of women, Dalit, Muslim and others.
There were also voices for positive discrimination for those people from excluded communities and regions. After visiting different places in the country, well-informed and educated people support, instead of division along “a state for this group and that”, there should be a policy of positive discrimination to include those excluded from the mainstream.