The big three political parties, UCPN(M), Nepali Congress and CPN (UML), are not taking into consideration the role of smaller political parties. That they do not seek the role of smaller political parties in the constitution-drafting process is proved by formation of the High- Level Political Mechanism. Even the smaller political parties in the coalition government revealed their disappointments on the bigger political parties’ activities. While bigger political parties have formed a high-level political mechanism without consultation of smaller parties, the Deputy Prime Minister Bijaya Kumar Gachhadar criticised the high-level political mechanism saying this is not capable to do anything,and smaller political parties started to demand their participation in the high-level political mechanism. Up till now, neither smaller political parties’ participation has been ensured nor is the mechanism itself working effectively.

In the CA, UCPN(M), Nepali Congress and CPN(UML) have 238, 114 and 109 members respectively. Out of 52 members of Madhesi Janadhikar Forum, more lawmakers are in Bijaya Kumar Gachhadar-led Madhesi Janadhikar Forum (Loktantrik) than Upendra Yadav-led mother party. The number of CA members is 28 in Gachhadar-led party and only 25 in Yadav’s camp. Tarai Madhes Loktantrik Party has only 21 members. Considering the numbers, UCPN(M), Nepali Congress and UML are the bigger political parties in the CA.

With the fourth round of amendment in the Interim Constitution on 28th May, 2008, consensus politics became defunct, and the decision-making system began on the basis of majority and minority. The role of smaller political parties turned ineffective while a mathematical game started in the CA. Thus, the role and presentation of smaller political parties can be analysed through two perspectives.

First, a number of CA members of smaller political parties have presented their opinions on logical and practical manner. The CA members Chitra Bahadur K. C. of the Rastriya Janamorcha Party, Dr. Prakash Chandra Lohani of Rastriya Janashakti Party, C. P. Mainali of CPN(ML), Narayan Man Bijukchhe and Lila Nyaichyai of Nepal Workers and Peasant Party, Jaya Prakash Gupta of Madhesi Janadhikar Forum, Pari Thapa of CPN(United), Law Minister Prem Bahadur Singh are found in this category owing to their logical and focused arguments in the discussions. However, the logical statements of smaller political parties’ leaders are not getting meaning and value in the CA. at the same time, the participation of other CA members of smaller political parties is not effective.

Out of fourteen committees in the CA, only four chairpersons are from the smaller political parties. Only the chairpersons of the Committee for Determining the Structure of Constitutional Bodies and the Committee for Determining the Base of Cultural and Social Solidarity are from the smaller political parties. Gobinda Chaudhary and Navodita Chaudhary respectively got opportunity to work as the chairperson in the Committee for Determining Constitutional Unit and Infrastructure and in the Committee for Determining the Base of Cultural and Social Solidarity.

Pramod Gupta and Mrigendra Singh Yadav of Madhesi Janadhikar Forum are the chairpersons in the Public Opinion Collection and Coordination Committee and Capacity Building and Source Management Committee respectively. These two committees have no authority to draft the new constitution, and they were formed to manage the administrative system with the responsibility of assisting other thematic committees.

Prior to Ram Kumar Sharma of Tarai Madhes Loktantrik party joining the UCPN(M), the initial structure of smaller parties in the CA was 133 members, including 52 members from Madhesi Janadhikar Forum, 2 from Tarai Madhes Loktantrik Party, 9 from Sadbhawana (Mahato), 8 from CPN (ML), 8 from Rastriya Prajatantra Party, 5 from CPN (United), 4 from Rastriya Prajatantra Party-Nepal, 4 from Rastriya Janamorcha, 4 from Nepal Workers and Peasants Party, 3 from Rastriya Janashakti Party, 2 from Rastriya Janamukti Party, 2 from CPN (Unified), 2 from Sadbhawana (Anandidevi), 2 from Nepal Janata Dal, 2 from Federal Democratic National Forum, and 1 each from Socialist Democratic People’s Party, Dalit Janajati Party, Nepal Pariwar Dal, Nepa: Rastriya Party, Nepal Loktantrik Samajbadi Dal, Chure Bhawar Rastriya Ekata Party Nepal.

The role of 132 CA members of the smaller political parties was sidelined in the constitution-drafting process though the CA has not proceeded effectively. The CA suffered through the passivity of major three political parties and their senior leaders’ inefficiency to resolve the differences on the fundamental issues on time. There has been no consensus on major decisions on governance system, federalism, PLA management, and the issue of inclusiveness. The senior political leaders are not making sufficient efforts to reach a consensus, but only repeating the word ‘consensus’ everywhere.

Within the three minutes of beginning, the ninety-seventh meeting of the CA was over by completing the work of leave approval of absent CA members. The agenda of the highly ambitious working schedule amendment has been removed with the tenth amendment in the third week of March. This was done as the last alternative. The CA meeting of 22nd March, 2009, has endorsed the sympathy proposal of Girija Prasad Koirala, a member of high-level political mechanism, and was postponed for uncertain time due to lack of business.

The constitution-writing process of Nepal has taken a backseat to the internal disputes of the parties. The first meeting of the Constituent Assembly was held only on May 28, 2008 even though the CA election had taken place on April 10, 2008. The three major political parties amended the Interim Constitution 2007 in order to proceed with the majority system on May 28, 2008, despite the Interim Constitution’s provision of constitution-making based on all party consensus.

The majority and minority system became constitutional provisions due to the major political parties UCPN (M), Nepali Congress (NC) and CPN (UML) not being able to reach a consensus on the issues of government’s leadership, first president of the Federal Democratic Republic of Nepal, and not on the issues of the constitution-writing process, and that ended the continued consensus politics in place since the 12-Point Agreement. After the fourth amendment of the Interim Constitution 2007, UCPN (M) Chairperson Pushpa Kamal Dahal “Prachanda” became the prime minister on the majority basis and Nepali Congress’s leader Dr. Ram Baran Yadav was elected the first President of the Federal Democratic Republic of Nepal on July 21, 2008 defeating UCPN (M) candidate Ram Raja Prasad Singh.

Prachanda-led coalition government remained in power for nine months with support of the CPN (UML), MJF and some other political parties while Nepali Congress was the main opposition. On May 3, 2009, Prime Minister Pushpa Kamal Dahal decided to sack the then Chief of the Army Staff (CoAS) Rukmangad Katuwal without consultation with others political parties, and decided to appoint Kul Bahadur Khadka to this post. Since then a constitutional dispute emerged between the President and the Prime Minister. When Dr Ram Baran Yadav, the President and the Supreme Commander of Nepal Army, commanded Katuwal to continue on his post, then Prime Minister Prachanda was compelled to resign from the government as even the coalition partners expressed their opposition to Prachanda’s sacking of the CoAS, and he was forced to resign and seek power from the streets.

The relation between the UCPN (M) and CPN (UML) that had been smooth till then turned sour after it transpired that CPN (UML) leader Madhav Kumar Nepal would become the prime minister. Previously, the UCPN (M) had played a decisive role to make Madhav Kumar Nepal as the Chair of the Constitutional Committee despite his defeat in the CA election from two constituencies from Kathmandu and Rautahat. But after Madhav Kumar Nepal became the prime minister resigning the post of the Chairperson in the Constitutional Committee, then the UCPN (M) started a protest movement accusing the President of becoming active in the re-instating of the Chief of Army Staff’s case, and terming Madhav Kumar Nepal’s becoming prime minister an insult to democracy as a candidate having lost from two constituencies in the CA election.

The UCPN (M) demanded constitutional supremacy, resignation of Madhav Kumar Nepal from the post of the prime minister, and national government under the UCPN (M) leadership, and Maoist leaders have publicly spoken in various occasions that without fulfilment of these conditions, a new constitution is impossible. When asserting that the constitution is impossible without his party’s leadership in the government, Dr Baburam Bhattarai said, “If the constitution is to be written in time, the government should be formed under our party’s leadership”.

The constitution-drafting process is becoming more unpredictable as the three major political parties are engaged in a game of power-centric politics, and as their role becomes increasingly ineffective on the decision making on the governance system, federalism, Maoist combatant management and basis for inclusiveness. They have not been able to rise above the power- and government-centric politics, and the CA meetings are postponed as it has not received any “business”. Lately, the constitution-building process has been seriously influenced through the political parties’ competition of government formation under their own leadership.
As the CA deadline for completing the draft of the constitution nears, the UCPN (M), the largest political party in the CA, is saying that constitution-drafting process cannot proceed without a Maoist-led government. It clearly reflects that the government is their first priority rather than the constitution-drafting process. Thus, the UCPN (M)-led protest movement all over the country is focused more on the government formation under their leadership rather than on drafting of the constitution on time. Therefore, the constitution–drafting process has been a victim of the power game of the major three political parties.

Despite the opportunity to head the CA and the government, CPN (UML), the third largest political party, has not been able to utilise the opportunity due to internal rifts within the Party, and while the UCPN (M) is saying that without their leadership on the government constitution-drafting process is impossible, CPN (UML) is not in a mood to quit the government leadership. The Constituent Assembly and the constitution-drafting process has been a hostage to the power politics of the two largest communist parties of the country.

In the CA Regulations 2008, political parties proposed that the CA members should be free from party ”whip” but since the very beginning of the committees meetings, party “whips” has been issues indirectly. Thus even on the issue of greater national interests, most of the CA members cannot articulate their opinion going outside their own political party line. But since the March 23, 2010 decision to make whips applicable to the CA members, they have been limited to presenting their party line instead of their own individual concerns. Thus, the CA is being sucked into a whirlpool of uncertainty due to the three major political parties’ focus on the leadership of the government rather than on the constitution-drafting process.

The importance and effectiveness of the constitution grows with the public’s ownership towards it. Therefore, after the establishment or restoration of democracy, through large scale changes and revolution, special attention has been given to the constitution-drafting process. The main agenda of the 2006/07 Jana Andolan II was to establish peace through holding constituent assembly election and the declaration of the new constitution. After the constituent assembly election was held on April 10, 2008, the public representatives have done a lot in collecting the views and suggestions of the general public, various institutions and organisations, and experts.

The Thematic and Procedural committees constituted to make the constitution-drafting process extensive, effective and fluent were given a special right to collect expert opinions, hold public debates, gather suggestions from Nepalis living both inside and outside the country, and hold seminars, conferences and field visits, if necessary. Based on this right as guaranteed by the Constituent Assembly Regulations 2008, the committees figured out the experts, held discussions and talks, administered questionnaires to the public, called for opinions through the public media, and gathered suggestions in persons. Although there were some weaknesses while preparing, administering and analysing the questionnaires with proper methodology, thousands of suggestions were gathered by the Prime Minister, top leaders of the political parties, ministers, parliamentarians, and civil servants through personal visits, memorandums, e-mails and telephones, among others.

The Constitutional Committee received three hundred direct suggestions and seventy-six through the Committee on Citizen. Dhan Ghale of Barpak, Gorkha, suggested ‘Ghale language and Gurung language are two separate entities’. For correcting the false practice of including Ghales within the Gurung community and assuring rights of the Ghale community, Dhan wrote, ‘There is a clear distinction between Ghales and Tamus (Gurungs); however, Ghales have been merged in the larger Gurung ethnic group. The Ghale community should be given recognition in the new constitution’. Similarly, Dayaram Chapagain emailed to suggest that the federal divisions should be carefully accomplished. ‘The federal states should not be on ethnic grounds, and the Tarai should not be declared autonomous state as it increases the chances of detaching itself from mainland Nepal’, he added. Whereas, Bibidh and Billap Chapagain of Chitawan suggested the Committee that ‘the state should make provisions for free education till class 12 and assure quality education without any discrimination in exercising opportunities and facilities’.

Santosh Dahal, who originally is from Jhapa and now living in Qatar, recommended to make strict laws to control kidnappers and robbers. His suggestion to the Committee read, ‘The kidnappers and robbers should be hanged-to-death if proven guilty because there are not such criminals in the countries where capital punishment is awarded’. Likewise, Niraj Khatiwada pointed out the dispute that Nepal and India continually have about their national territories. He suggested managing the dispute properly; and army camps would best do the job, according to him. ‘First shut the open Nepal-India border and establish army camps in the border region’, Khatiwada opined. Meanwhile, S. L. Ojha had to say something on a different topic. Expecting the constitution to have provision inclined towards the poor and the oppressed rather than the rich and the privileged ones, Ojha mentioned, ‘The poor should be able to have their own house to live on in their motherland’.

Mahendra Magar, a permanent resident of Khotang, living temporarily in Dhapakhel, Lalitpur, suggests that the existing practice of doing active politics till old age and letting corruption prevail should be abolished. In the letter drafted to the Committee, Magar recommended, ‘The maximum age for politicians and high-ranking officials should be seventy years; transparency should be maintained by evaluating the property of parliamentarians before and after becoming ministers; and if proven guilty of corruption, anyone, irrespective of his/her position, should be deposed and given capital punishment or lifetime sentence after seizing the property’. Similarly, Sukham Thapa from Saudi Arabia suggested having a prime ministerial system of governance and electing the president from the public poll rather than from the parliament.

There have also been opinions to have a different system to the existing one. Basanta Thapa recommended to have a unified democratic republican state and decentralised system of governance rather than having a federal system. Kapildev Thapa of Dhapasi, Kathmandu, favours scientific land reform. Prakash Poudel of Swayambhu, Kathmandu, demanded the establishment of training centres and employment opportunities targeting the unemployed youths. Blackbuck should be declared the national animal, said Bhim Bahadur Shahi of Gaimadi, Dailekh. Meanwhile, Rang Bahadur Shahi of Dandafayak, Humla, believed that the employment of one person from a household should be mandatory and that no more than one person should be allowed to get employed in civil service. Sabin Yadav has suggested on a different topic. He said, ‘Right to live in clean and tranquil environment should be guaranteed’. A Jana Aandolan victim Bhuwan Bahadur KC requested to give a 45 per cent discount to the Jana Aandolan victims in buses, microbuses and airplanes. Maniram Chaudhari of Kailali said that the upcoming constitution should not be centre‑oriented; it should rather be people-oriented.

In his bunch of suggestions, Nepali Congress central committee member Govinda Raj Joshi has recommended that there should be no more than 15 members in the Council of Ministers. In condition of consensus government, the Council of Ministers could have members based on the proportion in the parliament, suggests Joshi. Joshi, a former Home Minister and joint general secretary of Nepali Congress, suggested this through a letter. Joshi has extended his thoughts on constitution-making despite his defeat in the constituent assembly elections and the subsequent inability to contribute directly to the constitution-drafting process.
Not only have various individuals shared their thoughts with the Committee, various institutions have also done so. Nepal Shivasena Sub-Central Committee Kathmandu has demanded that the notion of secular state be removed and Nepal be re-established as a Hindu state. Similarly, the National Federation of the Disabled–Nepal has recommended that the preamble of the constitution should include the phrase: ‘Considering that people with disability are denied opportunities…’. Social Inclusion Research Fund has demanded that the third gender should be given citizenship recognising their identity. The Fund said, ‘On the subject of citizenship, the third gender individuals should be given rights to citizenship based on their identity’.

The Jamait Ulama Association recommended that the Muslim community be given recognition of religious minorities in the constitution. The Badi Concern Society, Tulsipur, Dang, has advised to ascertain provisions to rehabilitate and give employment to the Badi women who have been involved in commercial sex work. The National Network of Indigenous and Ethnic Group Nepal opined, ‘The preamble of the constitution itself should mention that the rights of the marginalised, minority and endangered indigenous and ethnic groups are secured’. Nepal Muslim Association has recommended the new constitution should accredit the Urdu language. Similarly, Nepal Dhobi Welfare Committee suggested that the Muslim laundrymen should be given recognition of Dalits as that of the Hindu laundrymen and be given all privileges offered to Dalits.

The National Women Commission has recommended having provisions that the Electoral Commission would not recognise any political party in which there is no 50 per cent women representation from the local to the central level. The Himalaya Old-Aged Association Nepal has advised to arrange for the welfare and rights of the old-aged people. The National Brahman Association has opined that Brahmans should be enlisted in the ethnic group category; that their rights be assured; and that affirmative action should not be based on ethnic grounds, but on class basis.

The Constituent Assembly members’ group, which had reached Mugu, was suggested to form an Education Commission like commissions in other sectors; to make the Public Service Commission transparent; and not to discriminate in the name of human rights. Meanwhile, the group which had reached Jhapa and Ilam was advised to devise a constitution that captures the sentiments of everyone, that makes everyone feel an ownership towards, and that addresses the issues of the victims and fighters of the Jana Aandolan (people’s movement) and the People’s War. The Committee for Determining the Structure of the Constitutional Bodies received 39,698 suggestions. Of these, the highest number–33,702 suggestions–were collected from the Public Opinion Collection and Coordination Committee, 5894 from the Committee on Citizen, and 72 from various governmental and non-governmental organisations from both inside and outside the country. The Committee had consulted 50 experts and concerned stakeholders.

The Constitution Socialist Group Nepal has recommended transforming Commission for Minorities, Language and Culture Commission, Commission for the Disabled, Indigenous Peoples’ Commission, Madhesi Commission, Youth Commission, National Information Commission, Natural Resources Commission, Dalit Commission, Women’s Commission, Land Reform Commission and National Planning Commission to constitutional bodies. The Forum for Women, Law and Development had advised to modify the Women’s Commission into a constitutional body that is independent and empowered. The Kirant Rai Yayokkha Nepal Central Working Committee has proposed that the authorities of the constitutional bodies should be appointed based on the ethnic proportion and that males and females be elected alternately to the post of the president of the nation.

Dharma Majhi of Nepal Tarai Mool-Majhi Welfare Committee demanded that the constitution should assure the mandatory representation of Tarai Mool-Majhis in all of the existing and prospective constitutional commissions for their rights and welfare. The public had recommended the constituent assembly groups to form women, Dalit, Janajati, Labourer, Muslim, and other commissions. Similarly, they had demanded proportional representation of women, Dalits, Janajatis and indigenous people in all of the state structures.

Constitutional lawyer Purna Man Shakya suggested the Committee that the Commission for the Investigation of Abuse of Authority, Election Commission and Public Service Commission are required both at the central and the federal state level. Constitution expert Kashi Raj Dahal recommended having independent police commission, separate commission for local bodies; gender equality commissions in areas with gender problems for equal rights and empowerment; commission for religious, linguistic and cultural development; information commission, among others.
Suggestions received by the Committee (through questionnaires and suggestions only)

• Committee for Determining the Structure of the Constitutional Body: 39,698
• National Interest Preservation Committee: 56,779
• Judicial System Committee: 38,539
• Committee for Determining the Structure of the Legislative Body: 41,910
• Committee for Determining the form of the Government: 57,200
• Constitutional Committee: 410

(Source: Committee reports)

The National Interest Preservation Committee received 48,985 suggestions from the CA members’ group and 7500 from the public and Committee on Citizen. The Committee received 294 suggestions from citizens residing inside and outside the nation via the media, telephone, email, internet, fax, and post. The Committee had consulted 26 subject experts and 46 government authorities. In the question ‘what do you understand by preserving the national interest?’, 20.89 per cent replied protecting sovereignty and national integrity, 5.28 per cent said achieving economic growth, 8.58 per cent mentioned preserving national unity, 9.13 per cent replied maintaining the identity of independence and dignity in the international arena, 55.54 per cent nodded to all of the options mentioned above, while 0.59 per cent left the question unanswered.

In a question asking about the appropriate process while ratifying, assimilation, sanctioning or supporting treaties and agreements, 11.21 per cent said that all the treaties should be passed with a simple majority by the legislature; 62.94 per cent replied that important treaties should be passed by two-third majority of the parliament and simple ones could be passed by a majority; 14.74 per cent said that the parliament should decide on it; 10.45 per cent suggested that the head of the state could do that; and 0.64 per cent said some other method be used. Border expert Buddhi Narayan Shrestha advised to have provision to ratify treaties relating border management and border demarcation only after it gets sanctioned by 90 per cent majority of the parliament. He further added to his list of suggestions that provisions be made for immediately detaining or life imprisonment for anyone working for the fragmentation of Nepal. Security expert Dhruba Kumar believed that Nepal’s biggest challenge is terrorism and to counter that, he suggested transforming the Nepal Army as Defence Army. Former Army officer and military expert Karna Bahadur Thapa claimed that national security could only be maintained by the Nepali citizens. He suggested following the Israeli model in Nepal. Everyone over a specified age in Israel undergoes military training.

The Committee had also received suggestions from various organisations. The Dalit NGO Federation had suggested a system where the central government has the complete authority to ratify international treaties and conventions, and the national army and border army be provided by the central government for national security. The Tajpuria Social Welfare Council suggested a system where the head to the state deploys the Nepal Army only after getting approval from the parliament, and the Army should bear responsibility of border security and national unity. Similarly, Sherpa Rastriya Mukti Morcha opined establishing border security force; and the Women Concern Forum recommended the Nepal Army to safeguard the international borders of Nepal and to give the security personnel authority to arrest anyone entering the Nepali territory without permission.

Tej Bahadur Khatri of Dolpa believed that national sovereignty should be at the hands of the Nepali people, that the number of the military personnel should be decreased, and that every Nepali over the age of 18 should mandatorily receive military training. While Nainshigh BK reckoned that the two armies be integrated to form a National Army, Deepak Shahi opined the army to be involved in developmental works. The CA members’ group was advised by the public to address the problem of border encroachment, to bring the army under the jurisdiction of the centre, to devise national policies to solve the issue of border encroachment and border security, and to hold referendum in issues that are of national significance, among others.

The Committee on Natural Resources, Financial Rights and Revenue Sharing, based on the information published in the media, had received 90 suggestions. In addition, 40 working papers were presented by various ministries of the Nepal government, National Planning Commission Secretariat, Local Body Fiscal Commission, various non-governmental organisations, institutions, and individuals. Moreover, the CA members’ group had also collected the vox populi. Similarly, to make the work effective, experts like Dr. Shankar Sharma, Dr. Rabi Sharma Aryal, Santosh Mani Nepal, Kala Nidhi Poudyal, Yam Nath Sharma and Din Mani Pokharel were selected.

Various institutions, organisations, political parties and individuals had suggested the Committee to keep the jurisdiction of limited areas such as currency, security, international relations and mobilisation of chief resources under the central government and all of the rest be decentralised. The aforementioned stakeholders had given altogether 92 suggestions to the Committee, of which some are: to assure equal access of all citizens to natural resources such as water, forests, land, herbs and minerals; to mention about managed taxation procedure in the constitution itself; and to give the marginalised areas effective protection from the state level.
The Ministry of Land Reform and Management recommended putting an end to the dual ownership of land; effectively carrying out the planned settlement process; and distributing revenue collected through house and land registration fees and from the Land Revenue Office amongst the central, federal and local bodies by devising a system. Similarly, recognising water resources as important national assets, the Ministry of Water Resources suggested that the constitution should define distinctive boundaries between the central and federal governments about the possession and use. The Ministry further said, ‘There are instances of conflict caused for water-related rights in various countries’, pointing out the likely challenges that could come in the future if necessary precaution is not taken.

The Ministry of Tourism and Civil Aviation has advised to devise a federal fiscal commission for inter-government revenue distribution; to list out the jurisdiction of various levels of government concerning property and responsibility, duty and obligation, and revenue distribution; and to develop an organ the works for resolving disputes. The Judicial Committee had received 38,256 suggestions from CA members’ group. The Committee Secretariat received 283 suggestions from various other mediums.

Saroj Dilu Bishwakarma proposed punishing the culprit of serious crimes by seizing property and with capital punishment. He also suggested fixing a time limitation for completing a case. Nepal Bar Association recommended to institute an independent, neutral, resolute, capable and accountable judiciary; to have a system of reappointing judges; to have 50 per cent law practitioners in all levels of the court while appointing Justices; to establish three-tier court; and to have local courts and reconciliation centres as per the necessity.

Biju Subedi of Taumadi, Bhaktapur, requested giving free services to those who have not received judicial dispensation for ten years, recognising regional court as an archival court, and making the decisions of the court democratic. Man Raj Thakur of Simraungarh, Bara, suggested electing the Chief Justice with the majority in the parliament, and appointing judges as recommended by the Constitutional Council. Aarohan Gurukul recommended establishing a separate court dealing with violence against women and crimes. Gurukul opined giving death sentence for serious crimes and severe punishment to be devised against the culprits of dowry system, polygamy, corruption and others.

The Committee for Determining the Structure of the Legislative Bodies received 41,900 suggestions via questionnaire and 10 via telephone. Likewise, the Committee also received written suggestions from various organisations and institutions. The suggestions included that the central legislative body should be a bicameral legislature, the age of the voters should be above 18 years, the period of the legislative should be of 5 years, and a representative of the upper house should be above 30 years of age and that of a lower house should be at least 25 years of age. Similarly, suggestions were also received to make the upper house proportional and inclusive, to use mixed electoral system in the lower house, and to make the federal legislature unicameral.

The advices received through the telephone were equally valuable. The opinions thus received mentioned ending the practice of declaring candidacy from more than one place; and having parliamentarians at least with a minimum educational qualification of bachelor’s degree and setting minimum qualifications for important posts such as Presidents, Prime Ministers, Finance Ministers and Education Ministers, at least Master’s degree. The Committee on the Protection of the Rights of Minorities and Marginalised Communities received 96 suggestions from various institutions. Of these, the Blue Diamond Society demanded including the third gender in the definition of minorities; the Constituent Assembly Support Network recommended granting the marginalised communities reservations for foreign employment; and the Mali Community Utthan Forum suggested declaring the Mali community as minorities, marginalised, and oppressed communities, and arranging measure of affirmative action and reservation to the individuals of Mali community.

Likewise, the Marginalised Aadivasi Janajati National Forum demanded declaring free education, free health facilities and employment as the basic rights of the marginalised, minority and endangered communities and including those rights in the fundamental rights. The Vedic Sanatan Hindu Religion Service Committee, Central Office, Chitawan, suggested conserving and maintaining temples that are functioning as a form of religious culture. Nepal Sanyasi Society requested listing Dashnami Sanyasis in the list of minorities and marginalised communities, ensuring equal proportional rights and representation in education and employment, and conserving cultures and preserving traditions.

The Committee for Determining the Base of Cultural and Social Solidarity received suggestions from various organisations, institutions and individuals. Similarly, the Committee also received suggestions from the CA Members’ group and 18 experts. The Federation of Nepalese Chambers of Commerce and Industry Kathmandu suggested assuring the constitutional sense of rights by acknowledging the interrelations amongst industrialists, investors, employers, workers and labourers. The National Dalit Commission suggested the constitution to say that no individual should be discriminated against, abandoned, rejected, banned, sanctioned, or forced untouchability based on one’s case, ethnicity, birth, heredity, occupation, community or ethnic origin.

Khas Chhetri Joint National Forum and Samajik Janatrantrik Society believed every mother-tongue spoken in Nepal to be the national language; and that Nepali language written in Devanagari font should be the official language used in government offices and also the lingua franca. However, the Nepal Federation of Indigenous Nationalities suggested that all mother-tongues should be the official language used in government offices. Nepal Disabled Human Rights Centre suggested to mention in the constitution that the tools used by people with disability, such as the Braille system, touch reading, lip reading, and sign language, should be regarded as a part of life. Nepal Gangai Welfare Council opined that the official language in the federal level should be Nepali written in Devanagari script, English, and other government-approved mother tongues.

The Jogi Community Empowerment Forum Nepal, Terhathum, suggested that archives of unrecognised ethnicities and communities of Nepal, including the Jogis, should be created after proper research, and the state should take complete responsibility of preserving the languages, culture, tradition and history of the marginalised communities. The Committee for Determining the Form of the Government received suggestions from 57,200 individuals. The Committee had received such proposals through email, telephone, letters, and request letters. Similarly, the Committee not only got advices from various organs of the Nepal Government, but also consulted 21 experts on various issues.

The Committee on State Restructuring and Distribution of State Power received suggestions from 40 groups of CA members, in the form of written documents from various institutions, and through seminars conducted with subject experts and others within its jurisdiction. In the written suggestions, the Committee was suggested to convert the existing zones into federal units; to decide their names through zonal council or referendum; and to form central, state, sub-state, and municipal or VDC governments. The Committee focused more on the qualitative part rather than the quantitative one while collecting the suggestion from the public. Consequently, only up to 22 suggestions have been received for a question.

When the public was questioned about provisions about the President and the Prime Minister, suggestions such as dividing their work based on the nature of their posts, making presidential system is the best in Nepal, and Prime Minister for daily administration. Some also gave examples from the various other nations. They have said the presidential and prime ministerial system should be like that of India, both should be elected, and both should have equal rights. The Committee has documented every view that was received. While suggesting opinions on the election of the President, the report of the Committee mentions: ‘The President should be directly elected from the people; or from the two-third majority of the parliament; or by through election by an electorate of federal parliamentarian members.
Creation of a federal unit by merging two zones, converting the existing five development regions into federal states, and outlining 11 federal states including mountain, hill and Tarai, were some of the suggestions. Similarly, opinions like having Tharuhat Autonomous State; creating federalism like that of Switzerland; and forming federal states on the basis of natural resources and means, geographical location, social and cultural importance, financial sustainability, were also received. Some other suggestion pieces said: the central state should be strong financially and legally; the central government should not interfere with the federal governments; finance, defence, internal affairs, water resources and land reform should fall under the centre’s jurisdiction; and provision of constitutional court or federal legislature or federal court should be there to handle the disputes between the centre and the state or between states.

The Committee on Fundamental Rights and Directive Principles received written opinions from 334 organisations and institutions. Similarly, 268 suggestions were received through email, post, and telephone. The Committee also collected suggestions from CA members’ groups. National Elderly Citizens Network Institution Nepal advised to ensure the elderly citizens’ right to live, along with rights to health, residency, security and special care from the state. National Land Rights Forum Nepal, Rasuwa, recommended securing the rights and welfare of peasants, bringing scientific land reform into effect, and having provisions to grant land to the squatters through the constitution. Public Forum for Human Rights suggested ensuring respectful environment and private meeting with law professionals to the arrested and imprisoned individuals; and Nepal Library Organisation requested forming library information and information service system, public library at the state level, and international-level library in every state.

Mithila Natyakala Council demanded ending the dowry system; Nepal Gold & Silver Dealers’ Association demanded ensuring the rights of the dealers of gold, silver and other valuable items and making the federal state responsible for their and their property’s security and preservation; and KIRDARC-Nepal, Dolpa, opined making a constitution that helps individuals eat full and ensuring the right to food. Family Planning Association of Nepal ensuring reproductive rights; Children Service Society Nerpa, Khotang, demanded putting an end to child marriage and polygamy; and International Union for Conservation of Nature suggested ensuring right to fresh environment, access and benefit to the natural resources, right to participation in environmental decision process, preservation of nature and organism through the constitution.

The suggestions received through email, post and toll-free telephone suggested the Committee to put an end to laws biased towards women, and to punish those who make liquor than those who consume it. Similarly, lifetime imprisonment to those who practice polygamy, ensuring security of pregnant women, establishment of separate juvenile court, and formulation of education system according to age, were some of the suggestions. Giving reward when a daughter is born, unemployment allowance, two years imprisonment to those who practice violence against their wives, equal wages to women and men, stopping having more than two children, fearless environment, and compulsory inter-caste marriages were some of the written suggestions that the Committee received. The CA members’ group collected opinions such as ensuring employment, ending impunity, ending violence against women, ensuring an employment per house policy, and establishing right to health, education and employment as fundamental rights.

The people’s participation while formulating the new constitution was overwhelming. Nepalis residing within and outside the nation showed their participation now only by meeting the CA members’ groups, but also through public media, posts, email and internet. The suggestions thus received have made the Committee ensured that there is optimism in the public that the constitution would be formulated and their voices would be heard. Despite a number of weaknesses such as unmanaged public opinion collection, less representative opinion pieces, and analysis via not well structured questionnaire, there are a lot of positive aspects. Various groups that were not able to make their voices heard in the past have come up with suggestions in organised form. Not only are the major issues addressed by the public, but also minor agendas taken up as demands.

In the Constituent Assembly, the 601 members are not from same background, experiences and schooling. Their background is varied, and their identities are also constructed on that basis. CA members’ contribution on the constitution-building has been based on their background; therefore, while a number of the CA members are more active on constitution-drafting process, no one is aware about few CA members’ activities. It is about time to ask how successful our CA members have been on the issue of constitution-drafting.

The one-hundredth meeting of the CA was held on 2nd April 2010. The Committee for Studying Draft Reports and Concepts Papers under the CA member Agni Kharel had submitted the report of the Committee on the Protection of the Rights and Minorities and Marginalised Communities in the meeting with necessary amendments, and the decision was made to submit this report to the Constitutional Committee. Political parties’ president and other senior political leaders of major political parties, such as UCPN(M), Nepali Congress, CPN(UML), and Madhesi Janadhikar Forum are not found serious till the hundred meetings. As a result, these leaders rarely attend the CA meetings.

The CA Regulation has a provision that if any CA member is absent from ten meetings in a row without information the CA secretariat, the post of the CA member will automatically become vacant. Therefore, the CA had to approve leave of some the CA members for the preservation of their seats. The meetings of March 2010 were only conducted by approving leave of absence of Girija Prasad Koirala, Puspa Kamal Dahal ‘Prachand’, Jhalanath Khanal, Dr. Baburam Bhattrai, Narayan Kaji Shrestha, Sher Bahadur Deuba, Uprenda Yadav, etc.

Other CA members hastily reach the CA building at Baneswor to be present and for continuation of CA meetings. They usually spend a few minutes in the canteen, and talk insde the tent setup nearby in small groups. When the bell rings, CA members just enter the meeting hall. The meeting is then usually postponed for an indefinite period due to lack of business. Thus, the CA has been inactive in the last few months.

With disagreements on fundamental issues and lack of political consensus, a number of CA members are worried regarding the political consensus between the parties and whether and when there will be a consensus among the parties, and when the constitution-drafting process will gather momenutum. To find out information about CA members, it is being difficult not only for the people, even for the CA secretariat, because there is no information in the secretariat regarding the CA members of all political parties in terms of where they are and what they are doing. Therefore, some of them are in foreign visit and a number of others are being busy in political activities at their districts, and several others are busy engaged with the people in the ministries and departments.

Some of the CA members are found busy in project works rather than the constitution-drafting process. A group of CA members are extremely busy to attend the NGO meetings not only in the capital but outside in the districts. The presence of CA members can be seen in seminars, regarding the discussions of inclusion, state restructuring, ethnicity, women, and Madhes‑related issues in various hotels. Therefore, constitution-drafting is the last priority for our CA members not unlike the political leaders.

There is no doubt that the CA is inclusive, although it is another matter whether it fulfilled its responsibility. It has to be asked by the people now as to who is repsonsilbe for the constitution not being drafted on time. This should be asked of the leaders and political parties and those who were elected in the direct election from particular district, because they are getting facilities from taxes paid by the common people. A CA member gets around Rs 50 thousand amount on a monthly basis but, in the constitution-drafting process their role, except for a few, has been nothing more than to blindly support their own party’s top leaders’ statements.

The third constitution is being drafted in Nepal in the duration of twenty years. The Constitution of 1990 was promulgated on November 9, 1990 after the People’s Movement (Jana Andolan) of the same year. Similarly, after the 2006 Jana Andolan (II), the Interim Constitution was promulgated on January 15, 2007. The new constitution is being written following the mandate of the Jana Andolan II and the voices represented in the Constituent Assembly. Various political scenarios have played roles in developing platforms for the drafting of these three constitutions. During this period, a lot of changes are seen in the economic, social, and educational level of Nepal. Likewise, the needs, expectations, and aspirations of the Nepalis have increased.

Background and Differential Styles

The People’s Movement 1990 (Jana Andolan I) was against the 30-year autocratic Panchayat System. The revolution was started in the leadership of the Nepali Congress and United Left Front on February 19, 1990 and reached its climax on April 8, 1990. Because he could not suppress the movement initiated by the political parties, King Birendra was forced to remove the word ‘party-less’ from the constitution. After the multiparty system was restored, an interim government, headed by Krishna Prasad Bhattarai, was formed. The drafting of a new constitution and holding a general election to direct the nation in a political system were the chief responsibility of this government. Bearing in mind the national responsibility and the-then power balance, a commission for drafting the constitution was formed that had the representatives of the King, Nepali Congress and the United Left Front. Though the Nepali Congress and the United Left Front represented the mandate of the Jana Andolan in the Commission, they were elected by the people. However, after a series of discussions, debates and hard work, the commission formulated a draft constitution after six months. After the Council of Ministers made some minor changes, the Constitution of 1990 was promulgated by King Birendra.

Whereas, a totally different political scenario has played a role in enacting the Interim Constitution 2007. Chiefly, as the Nepali Congress and the CPN (UML) could not work as per the spirit and mandate of the constitution, the rule of law could not be established in the country. The King was using the constitution as a tool for ending the parliamentary system. The CPN (M) had launched a war against the democratic system of governance ensured by the constitution.

Towards the climax of the conflict, the distance between the Maoists and the political parties like the Nepali Congress and CPN (UML), which supported the King and the parliamentary system, decreased. Believing that they needed the support of each other to bring political change, the Maoists and the Nepali Congress and CPN (UML) reached a consensus to fight against the King’s dictatorial regime. As a result of this, a twelve-point agreement was reached on November 22, 2005. Keeping Loktantra (democracy) as the central focus, the political parties started the decisive revolution from April 6, 2006, and the Maoists supported them. After a flood of people came to the streets for Loktantra and peace, the King was forced to restore the dismissed parliament on April 24, 2006 and called the assembly of the parliament.

After the success of the Jana Andolan, a government headed by the Nepali Congress leader Girija Prasad Koirala was formed. The parliamentary meeting called on May 18, 2006 withdrew the special rights of the King. Then, the Maoists joined open politics on June 16, 2006 following the eight-point agreement that was signed between the government and the Maoists. An agreement, after talks and discussions between the government formed by the political parties that carried out the revolution and the Maoists who had left the revolutionary politics and entered into peaceful politics, was reached to devise a new constitution after holding the Constituent Assembly elections. Likewise, an interim constitution draft committee was formed involving representatives of both sides during the-then transitional political situation. The Interim Constitution devised by the committee was promulgated on January 15, 2007 by the parliament which already had Maoist members by then.

The primary goals of the Interim Constitution were to institutionalise the achievements of the Jana Andolan, to hold the Constituent Assembly elections, and to create an environment for the Constituent Assembly to draft a new constitution. The historic election of the constituent assembly was held in Nepal on April 10, 2008. To draft their constitution by themselves, the public extensively participated in the elections of the constituent assembly. The CPN (M) became the largest party in the Constituent Assembly after the elections and the Nepali Congress and CPN-UML respectively became the second and the third largest parties. Based on the first-past-the-poll system and the proportional representative system, 25 political parties got the opportunity to represent themselves in the Constituent Assembly. In a backdrop where the nation has been declared a democratic republic after duly ending the monarchical system through the Constituent Assembly, the people’s representatives are busy drafting the new constitution. The new constitution that is being drafted by the people’s representatives is to be promulgated from the parliament itself.

Differences in the Content

The 1990 Constitution of Nepal had the provisions of constitutional monarchy and parliamentary system of governance. The provisions about the King and the monarchy in the Constitution were set based on the notion that ‘the King is not active and can do no wrong’. While the 1990 Constitution had the provision that the Prime Minister was the head of the government and the King was the head of the state, the 2007 Constitution ensures that the executive rights are limited only with the Council of Ministers. It has been clearly written in Article 37 of the Interim Constitution that ‘the executive power of Nepal shall, pursuant to this Constitution and other laws, be vested in the Council of Ministers’. . Nepali Congress leader Girija Prasad Koirala was the prime minister in a situation where the monarchy was neither fully ended nor openly accepted. While promulgating the Interim Constitution, it was silent on the monarch, but this situation did not last long. Because of the movements that were carried out in the Tarai and in the parliament itself, the first meeting of the Constitution Assembly had to declare the country a republic.
Stating that the Interim Constitution did not effectively address their demands, the Madhesi People’s Rights Forum started a movement in the Tarai. When the agitating groups of the Madhes Uprising were not satisfied even after the Prime Minister addressed the country, the government and political parties like the Congress, UML and Maoists agreed to amend the Constitution. Consequently, they amended the Interim Constitution on April 13, 2007 and added the provision that Nepal would be a Federal Democratic Republican State. The amended part of the Interim Constitution that was passed by the parliament stated: ‘Accepting the aspirations for autonomous states of the Madhesi people, along with the ethnic, indigenous and marginalised peoples, Nepal should become a Federal Democratic Republican State’.

Article 33 of the Interim Constitution 2007 stated that the elections of the Constituent Assembly would be held within mid-June 2007. But the environment for drafting the constitution by mid-June was not created as per the consensus reached by the parties about elections while drafting the constitution. In the situation where there was series of blaming and counter-blaming amongst the parties was escalating, and there were rumours that the palace and royalists were trying to sabotage the Constituent Assembly elections, the second amendment to the Interim Constitution was made on June 13, 2007 and such provision was made that the monarchy would be abolished if the elections to the Constituent Assembly was tried to be disrupted. The Maoist position on this provision did not last long. The Maoists soon started pressing for declaration of a republican from the parliament. Assuming that the presence of the King could become problematic to holding the Constituent Assembly elections, they wanted to dethrone the King. As their demand was rejected by political parties including the Nepali Congress and CPN-UML, the Maoists proposed for federal democratic republic.

After a long dispute, an election was held in the parliament itself. As the Maoists and the UML were for instantly starting the processes for implementing the federal democratic republicanism, the bill was passed by a majority in the parliament. Even the bill passed by the parliament could not be implemented due to the dispute amongst the parties. After a series of discussions and debates, a consensus was reached by the Nepali Congress, Maoists, and UML, and on December 27, 2007, the third amendment of the Interim Constitution was made mentioning that the first meeting of the Constituent Assembly would declare Nepal a republic. Similarly, constitutional provisions were made that no right of governance would be given to the King, and the Prime Minister would do all the work that the head of the state does until federalism and system of governance are not implemented. The first meeting of the Constituent Assembly on May 28, 2008 declared the implementation of the federal democratic republican and finally the state entered into an era of a republican. The fourth amendment of the Interim Constitution systematically ended the monarchy declaring Nepal a federal democratic republic state and established a system of electing the President and the Vice-President.

The 1990 Constitution recognised the people as the source of the state power. The sovereignty of Nepal rested on Nepalis. State power was not in their hands. It was mentioned in the Interim Constitution that both sovereignty and state power rested on the people. These two provisions are going to be enshrined in the new constitution. The preliminary draft report of the new constitution prepared by the Constitutional Committee mentions: ‘The sovereignty and state power lies in the Nepali people’.

The provision of state restructuring was not clear in the 1990 Constitution. Similarly, the class, ethnic, regional, and gender-based problems were not fully addressed. It is mentioned in the Preamble of the Interim Constitution 2007 that: there will be ‘progressive restructure of the state in order to resolve the existing problems of the country based on class, caste, region and gender’. In the new constitution, a step is being taken further than that. The Preamble of the constitution as prepared by the Constitutional Committee mentions: ‘Aspiring the construction of an equitable society based on proportional representation and participation, and ensuring economic equality, privilege and social justice by ending all forms of discrimination and untouchability based on sector, ethnicity, region, language, religion, gender and caste’.

In the 1990 Constitution, Nepal was declared a Hindu Kingdom. It was defined as a secular state in the Interim Constitution. Preparations are being done for writing Nepal as a secular state in the new constitution. While it was said in the Interim Constitution that Nepal was an independent, indivisible, sovereign, secular and inclusive state, the new constitution has taken a step further. In the proposed draft of the Constitutional Committee of the Constituent Assembly, initiatives have been taken to regard ‘Nepal as an independent, indivisible, sovereign, secular, inclusive, state socialism-oriented, republic and multi-national state’.

There have been a lot of changes in the context of looking at and using the language. Mentioning that Nepali language is the national language of Nepal, the 1990 Constitution said: ‘Nepali shall be the official language of Nepal. All the languages spoken as mother-tongues spoken in various parts of Nepal are the national languages of Nepal’. The provision in the Interim Constitution is more progressive than that of the 1990 Constitution. In the Interim Constitution, it is mentioned that all the mother-tongues are national languages. Similarly, while Nepali language that is written in the Devanagari script shall be used as the official language, there would be no restriction in using the mother-tongues in the local level and offices, and the language thus used shall be translated into the official language by the state and archived.

There have been efforts to further simplify the provisions related to language in the new constitution. Taking a step further than the Interim Constitution, the new constitution has taken initiatives to ensure that it shall be the duty of the state to give equal protection, preservation, and development of the national languages; every community with a mother-tongue shall be given rights to respectfully champion their linguistic identity and their relation to the language; and the visually-impaired and the speech-impaired shall be given rights to use the Braille-script and sign-language. Although the official language of the central government shall be Nepali language in Devanagari script, there have been efforts made to have a provision that any language could be given the recognition of the official language of the central government by the Language Commission based on the fulfilment of certain standards. The Committee for Determining the Base of Cultural and Social Solidarity, in its concept note and preliminary draft report, mentions in a provision: ‘The official language of the central government and one or more than one national language spoken within the federal government shall be the official language of the federal government as determined by the federal legislature’.

Similarly, press freedom was mentioned in Article 13 of the 1990 Constitution. While press freedom was ensured in the preamble of the Interim Constitution, the constitution that is in the making has also ensured press freedom in its preamble. The preamble prepared by the Constitutional Committee mentions: ‘being committed to the democratic values of people, competitive, multiparty, democratic, proportional, and inclusive system of governance; civilian freedom; fundamental rights; adult franchise; periodic elections; press freedom; capable, neutral and independent judiciary; and the rule of law for creating the basis for socialism’.

The new constitution will contain more fundamental rights than the 1990 Constitution and 2007 Interim Constitution. There were 13 fundamental rights in the 1990 Constitution, namely: Right to Equality, Right to Freedom, Right to Press and Publication, Right to Criminal Justice, Right against Preventive Detention, Right to Information, Right to Property, Right to Culture and Education, Right to Religion, Right against Exploitation, Right against Exile, Right to Privacy, and Right to Constitutional Remedy. This list was increased to 21 in the Interim Constitution. In addition to the 1990 Constitution, Right against discrimination based on Untouchability and Race, Right to Environment and Health, Right to Employment and Social Security, Rights of Women, Right to Social Justice, Rights of the Children, Right to Justice, Right against Torture, and Right to Labour were incorporated in the Interim Constitution.

Initiatives are being taken to have provisions of 31 fundamental rights in the new constitution. In addition to what the Interim Constitution has, this constitution includes Right to Live with Respect, Right of the Crime Victims, Right to Food, Right to Residence, Right to Family, Right of the Consumers, Right of the Implementation of the Fundamental Rights and Constitutional Remedy being added. Clarifying this, the report of the Committee on Fundamental Rights and Directive Principles has written: ‘Because it is believed that the state shall not do unfair intervention in exercising fundamental rights of civic and political nature, and the state shall play affirmative role in exercising fundamental rights of financial, social and cultural nature, the state shall devise appropriate law and other mechanisms for their implementation the fundamental rights under this section – right to education, health, employment, residence, food, social justice and social security’.

Though the provision of fundamental rights was there in the 1990 Constitution and the Interim Constitution, no provision of fundamental duties was there. However, there have been efforts to include fundamental duties in the constitution that is being drafted. The Committee on Fundamental Rights and Directive Principles of the Constituent Assembly has proposed including the following under the fundamental duties: to safeguard the nationality, sovereignty and indivisibility of Nepal being respectful to the country; to preserve national privacy; to follow the constitution and the laws; to compulsorily serve the nation whenever it needs; and to pay taxes as mentioned by the laws. Similarly, to preserve the public and national property; to exercise one’s freedom and rights without hindering the state’s, society’s or anyone else’s rights; and to preserve and promote the environment and natural, historical and cultural heritages have also been proposed as fundamental duties.

There are also possibilities of having different provision regarding the executive rights compared to the preceding constitutions. The 1990 Constitution vested the executive rights on the King and the Council of Ministers. All the works of the King used to be done through the advice and agreement of the Council of Ministers until otherwise done by the King’s own consciousness or the recommendation of any other institution or authority. The Interim Constitution of 2007 vested the executive rights on the Council of Ministers. There is no clarity on whom does the executive rights lie on in the new constitution. No majority was reached in the election within the Committee on whether the executive rights should be vested on the President or the Prime Minister. Because of this, the provision of executive rights in the new constitution is not clear.
In the 1990 Constitution, there was a provision of bicameral parliament, with the House of Representatives and the Upper House. As per this, there used to be 205 directly elected members in the Parliament and 60 members in the Upper House. After the King’s usurpation of power of October 2, 2002, there was no parliamentary elections held in Nepal, and therefore, no House of Representatives. The existing Upper House was made ineffective.

In the Interim Constitution, provision was made for a unicameral legislature consisting 330 members. In this parliament, there were members from the former parliament, the members from the Upper House, and the representatives from the CPN (Maoists). This was a special kind of unicameral legislature where 83 representatives of the CPN (Maoists) who had come into the peace process were included. A bicameral legislature has been aspired for in the upcoming constitution. The Committee for Determining the Structure of the Legislative Body of the Constituent Assembly has proposed having the lower house as the House of Representatives and the upper house as the National Assembly. There shall be 151 members in the Lower House and 51 members in the Upper House.

As per the 1990 Constitution there were Commission for the Investigation of Abuse of Authority, Attorney General, Public Service Commission, and Election Commission as constitutional bodies. The National Human Rights Commission was added to the existing list of commissions through the Interim Constitution. It has been prepared in the upcoming constitution to increase the number of commissions. The Committee for Determining the Structure of Constitutional Bodies of the Constituent Assembly has proposed adding Women’s Commission; Dalit Commission; Indigenous and Ethnic Peoples’ Commission; Muslim Commission; Madhesi Commission; and Commission for the Welfare and Protection of Persons with Disabilities, the Minority and Marginalised Communities, and the Backward Class and Areas.
Although the 1990 Constitution was exercised for 15 years, no amendment was made in that. Even thought the CPN-UML and Nepal Sadbhawana Party had carried out discussions for amendment, it could not be institutionalised. After the Nepali Congress leader Sher Bahadur Deuba publicly remarked that not even a “full stop” could be amended in the constitution, no attempt was taken for amending the constitution. The Article 116 (2) of the 1990 Constitution had a provision that any bill shall be presented before the King for endorsing if it is passed by a two-third majority of present members who have to be two-third of the total number of the parliamentarians. The individuals holding power never took initiatives to go along with this provision.

The then Prime Minister Sher Bahadur Deuba dismissed the parliament on May 22, 2002. As it appeared unfeasible to hold the elections on pre-scheduled November 13, 2002, the political parties decided to postpone the elections by one year. To implement this, they granted the King the power to remove difficulties as per the Article 127 of the 1990 Constitution. Using that power, the King on October 4, 2002, ousted Deuba from the post of the Prime Minister and usurped all the executive rights in his hands. As a result of that, the King sometimes appointed the prime ministers on his own, while sometimes called for application for the post of the prime minister. When he started ruling the country by taking all the powers himself from February 2, 2003, the movement initiated by the political parties was able to restore the dismissed parliament.
The Interim Constitution drafted then has been amended seven times in the three years of operation. The Interim Constitution was devised to manage the transition period. It is perceived as a soft constitution by the political parties. Although the provision of making a two-third majority is not an easy one, the constitution has been amended at times to address the series of movements, and to find consensus in various political agendas and to restore the work of the parliament. When the Madhes Uprising took place in the Tarai, the government tried to address it by amending the constitution. The Maoists obstructed the parliament demanding the declaration of federal democratic republic and fully proportional electoral system. The constitution was amended following this.

Similarly, because the date of holding the Constituent Assembly elections included in the constitution itself and being not able to hold the elections in time, the amendment of the constitution was mandatory. The constitution was also amended to make it up-to-date. The best example for this is the fifth amendment of the constitution and implementation of constitution on March 8, 2008. The constitutional amendment was an attempt to solve the issues raised by movements and the debates raised in national politics. While the constitution was amended multiple times in a short duration by the government and political parties for finding way out of the problems faced rather than weighing the short-term and long-term consequences of amending the constitution, the agitating parties demanded constitutional amendments because they thought that agitation is the best option for making the government and other political parties yield to their demands.

Dates and Amendments

The first amendment was done on April 13, 2007, following the demands of the Madhesis, along with indigenous and ethnic groups, and marginalised people to make Nepal a federal democratic republic state.

The second amendment was done on June 13, 2007, including a provision to dethrone monarchy if it tried to disrupt the Constituent Assembly elections.

Third was done on December 28, 2007 where Nepal was declared a federal democratic republic, that the provision of establishing a republic through the Constituent Assembly was incorporated, and where it was finalised that the Constituent Assembly elections would take place within mid-April 2008 and the number of constituent assembly members be 601.

Fourth amendment was on May 28, 2008 when the monarchy was formally abolished and Nepal was declared a federal democratic republic and the Constituent Assembly would elect the country’s President and Vice-President.

Fifth was on July 12, 2008 when the provision of choosing the prime minister by a simple majority and not by two-third majority was incorporated.

Sixth, on December 11, 2008, it was stated that any Nepali citizen over the age of 18 years would be allowed to cast vote in the by-elections.

Seventh, on January 28, 2010, for making the post of the Vice-President function, provision of allowing the President and Vice-President to take vow in his/her mother-tongue was added.

The Article 148 of the Interim Constitution maintains that for any article of the constitution to be amended or scrapped off, a bill could be presented in the parliament, and the bill thus presented gets passed if the two-third majority of the parliamentarians vote for it. Based on the same Article, the parliament following the demands of the Madhesis, along with indigenous and ethnic groups, and marginalised people agreed to make Nepal a federal democratic republic state.

Similarly, the provision of abolishing monarchy if it tried to disrupt the Constituent Assembly elections, of declaring Nepal a republic through the Constituent Assembly, of the abolishment of monarchy, and of electing the Prime Minister through a simple majority was done through amending the constitution. The Provision for Constitution Amendment as proposed by the Constituent Assembly Constitutional Committee mentions: ‘Any amendment against the values and norms respecting people’s sovereignty, republican system, rule of law, independent judiciary, fundamental rights, press freedom, pluralism, multiparty competition, adult franchise, and periodic elections cannot be made.’

Conclusion

Not only for political reason, but the 2007 Constitution is progressive compared to the 1990 Constitution in terms of state restructuring, inclusive nature, and the financial, social and cultural rights incorporated in it. This change was not brought about just by the duration of 16 years, but a big role of the people’s movements and the aspirations expressed through them. Although devised to manage the transition period, the Interim Constitution has granted many rights to the people. The voices raised for one’s welfare and rights are also addressed in this constitution. This has opened a series of avenues for change.

The new constitution being drafted in this prospect is likely to be better than the previous ones. Such stage is also set because of the drafts of the Constituent Assembly committees, people’s participation in drafting the constitution, and people’s interests in the Constituent Assembly. It is not that the Nepali Congress, UML, and Maoists have not given voices to proceed with new ideas. But if the representation and power balance of the Constituent Assembly is seen, no political party could neither stop the change nor could usurp the democratic norms and values. If gone by simple majority to approve the proposals of the Constitutional Committees, there could be chances of them getting changed. Similarly, as there is no chance of the constitution getting drafted in any one particular political party’s power, the major parties might have to give ground on their positions. However, there is no room for the political parties to give away important issues of progression, democracy, federalism, restructuring, inclusion, human rights, and press freedom.