The term of the CA was extended for one year on May 28, 2010, to resolve differences among the political parties. A sub-committee to study reports and make suggestions was formed under Laxman Lal Karna.  When he became a minister, Agni Prasad Kharel became the coordinator of the sub- committee. The sub-committee prepared a list of 210 contentious issues after 8 months of studying the reports from different committees of the CA.

A high-level working group was formed under Pushpa Kamal Dahal as coordinator to resolve the 210 contentious issues pointed out by the Kharel-led sub-committee. This working group was able to sort out 127 out of the original 210 issues. While consensus has been reached in some of them, some of them have been set aside to be settled later even among the 127 settled issues. These issues of disagreements later came down to 83, and now there are still 21 outstanding issues to be resolved.

1 Consensus

Consensus on many issues has been reached but some issues still remain.  However, most of these issues have simply been agreed to be resolved at a later date. Consensus (with some backtracking afterwards on some issues, e.g., judiciary) has been reached in the following issues:

1.1 Federal units

The country becoming a federal republic has been a fait accompli as it has been included in the Interim Constitution. However, the issue of federal structure and model, their working has seen problems with the political parties favouring different models, yet some consensus has been arrived at a number of issues.

1.1.1 Retention of districts

The issue of whether to retain the present district structures once federal units have been decided has been left to be decided after discussion with the Committee for State Restructuring. What this translates in reality is that the issue still remains unresolved and that the high-level working group has agreed to resolve it at a later date.

1.1.2 Imposition of emergencies

There will be no need to impose emergencies in the federal units.

1.1.3 No-confidence motion against the chief minister

No need to put forward an alternative candidate, while registering a motion of no confidence against an incumbent chief minister.

1.1.4 Independence at local level

The work of legislature, parliament, and judiciary will be performed through separate mechanisms at the local level.

1.2 Official language

Nepali will be the language for official purposes.

1.3 Citizenship for NRNs

Non-resident Nepali will be granted citizenship certificate under the condition that they not engage in political activities.

1.4 Political party formation

No restriction on registering political parties without affecting the national integrity.

1.5 Economy

Mixed economy fiscal policy will be followed.

1.6 Parliament at the Centre (federal)

The Centre will have a bicameral central parliament with House of Representatives and National Assembly.

1.6.1 Elections to the federal parliament

The provision of reinstatement of the dissolved lower house of the federal parliament when elections cannot be held will not be included in the new constitution.

1.6.2 New elections

Until new elections take place, the incumbent president, vice-president, council of ministers, and heads of constitutional bodies will be continued.

1.7 New Constitution

There has been an agreement to draft a democratic constitution.

1.7.1 Name of the constitution

The name of the new constitution shall be ‘The Constitution of Nepal’.

1.8 Constitutional council (see also Judiciary below)

The UCPN(M) agreed that the chief executive of the country will head the Constitutional Council, which will appoint the Chief Justice and officials of other constitutional bodies. The other members of the council will be the Chief Justice, speaker of the parliament, opposition leader, and the law minister.

1.9 People’s Liberation Army

People’s Liberation Army will not be mentioned in the new constitution.

1.9.1 Compulsory military training

There will be no provision to include compulsory military training to all adults above 18 years of age, which was long an issue of contention between the UCPN(M) and other parties. Finally, the UCPN(M) relented and agreed not to include this provision in the new constitution.

1.10 Judiciary

Judiciary has been one area where there has been a lot of debate and disagreements among the parties not only because of their ideology but also due to differing beliefs in what constitutes democratic values.

1.10.1 Judiciary/Supreme Court

The UCPN(M) has agreed to form a separate entity similar to the present Constitutional Council or Judicial Council to appoint and dismiss the chief justice and justices of the Supreme Court.  It has also agreed that the judiciary will be the final interpreters of the constitution and laws of the land. It was finally agreed that a Constitutional Court will be the final interpreter of the constitution and the laws. This has again been contested by the UCPN(M) as Dev Gurung from the party proposed that the judicial council headed by the speaker of the house should be the interpreter of the constitution and, in a marked departure from other parties, corruption allegations against the Supreme Court judges should be investigated by the Commission for the Investigation of Abuse of Authority.

2 Contentions

The contentious issues in constitution drafting relate to the perception of the political parties of what is a stable form of government and that reflects their political ideology and/or philosophy.

2.1 Form of the government (also see Electoral system below)

There is still no consensus among the parties on the form of government and whether it will be headed by the president or prime minister, who will be the chief executive, the formation of the council of ministers.

2.1.1 UCPN(M)

The UCPN(M) has proposed a directly elected executive president to provide stability to the country as there will only be one power centre and financially less burdensome to the country. It has also proposed that the president can also be recalled by two-third members of the central working committee of the party from which the president has been elected, which the other parties feel as being undemocratic.

The UCPN(M) proposes to form a council of ministers from all the parties represented in the parliament; however, there will be no compulsion to include those parties who have received less than 5% of votes. This representative council of ministers will help avoid conflict in the country.

2.1.2 UML

The CPN(UML) has been inconsistent in its stand regarding the chief executive of the country. Initially, it proposed a system where the president is elected from the parliament to represent diversity and a directly elected executive prime minster so that there is stability in the country. However, during the voting in the committee to finalise the form of government, the UML voted for both the president and the prime minster to be elected from the parliament. The NC also supported the UML, perhaps in a bid to foil the UCPN(M).

2.1.3 NC

The NC has proposed a ceremonial (constitutional) president to represent the diversity of the people of Nepal and an executive prime minister from the majority party in the parliament, which it believes will ensure balance of power.

2.1.4 TMLP

The Terai-Madhes Loktantrik Party proposes a president elected from the parliament with one condition that the president, once elected, has to resign even from the general membership of the party.

2.1.5 MJF

The Madhes Janadhikar Forum supports the UCPN(M) model.

2.2 Electoral system

The model of electoral system has elicited more and divisive disagreement among the parties.

2.2.1 UCPN(M)

The UCPN(M) has suggested direct multi-member proportionate elections where voters from a district get to choose only one party even though there are many candidates in various constituencies and the candidates from the largest vote winner party is declared winner from all constituencies. Other parties have opposed this model as being undemocratic.

2.2.2 NC

The NC advocates a mixed member proportional where the largest vote winner gets elected and other members on proportional representation basis.

2.2.3 UML

The UML has proposed a mixed-member proportional representation (MMPR) system in which representatives will be elected through direct elections and proportional electoral system. For example, in the CA elections, the UCPN(M) had received 3,145,519 votes in the direct and 3,144,204 votes in the proportional system, which is a total of 6,289,723 votes. The UCPN(M) would have received 170 seats under this system. Since they had won 120 seats under direct voting, they would have received only 50 seats on a proportional basis. However, on a proportional system, the parties get the number seats based on the votes the parties get for proportional system. The UCPN(M) had received 100 seats under this (proportional) system.  If mixed-member proportional representation system had been followed in the CA elections, the UCPN(M) would have received only 50 seats under this system and 50 seats would have gone to other parties as compensation..

2.3 Federalism

Though the country is heading towards federalism, many issues remain undecided due to difference of agenda of the political parties. There has still not been an agreement on the bases for federalism. The parties also cannot agree on the number of federal units, and consequently their border delineation as well as names of the federal units. On top of this, the State Restructuring and Distribution of State Power-proposed model of federalism has not linked the viability of the federal provinces and identity/recognition of ethnicities therein while proposing federal units.

2.3.1 UCPN(M)

The UCPN(M) has proposed a model of 14 federal provinces based on ethnicity, as it was their core agenda during the insurgency.

2.3.2 NC/UML

Both NC and UML have explicitly rejected federalism based on ethnicity and instead have proposed that federal units should be based on recognition of ethnicities, economic viability of the provinces and geographic accessibility. They have opposed the number of federal units, i.e., 14 federal units proposed by UCPN(M).

2.3.3 Madhes-based parties

They have opposed all models of federal units as none of the proposed models provides for “One Madhes, one province”.

2.3.4 Rastriya Jana Morcha

Rastriya Jana Morcha has always opposed federalism, arguing that it will lead to division of the country.

2.4 Fundamental and basic principles

The disagreement on fundamental principles have been the most difficult as parties come different backgrounds and though there is representation from different groups in the CA, the members have toed the party lines. Questions have been developed on the basis of disagreements on the report of the fundamental principles committee.

2.4.1 NC, UML and others

The NC and other parties have focused on the fundamental principles, especially since the UCPN(M) has rejected pluralism. These parties believe the defining of these fundamental principles will ensure federalism, democracy, and republicanism.

2.4.2 UCPN(M)

The UCPN(M) believes that the fundamental principles will be developed as the constitution drafting progresses and be ready by the time the constitution is finalised.

2.5 Democratic values

Though the pluralism and press freedom have been passed from the Committee on Fundamental Rights and Directive Principles, there is a debate on whether to include other features of a democratic society like press freedom, rule of law, human rights, right to vote, periodic elections in the preamble of the constitution as immutable/unchangeable.

2.5.1 UCPN(M)

It does not want anything in the constitution to be unchangeable as it believes it would infringe upon the rights of the “directly elected sovereign representatives of the people to make decisions in the future”. While it has specifically opposed press freedom and pluralism, it feels that if there is to be anything unchangeable, then these would be federalism, republicanism, and sovereignty of the people.

2.5.2 NC/UML

The NC and UML want federalism, republicanism, democratic values to be unchangeable in the new constitution, especially democratic governance system, fundamental rights, social justice and economic equality, human rights, right to vote, periodic elections, full press freedom, independent and accountable judiciary, constitutional supremacy, rule of law.

2.6 PLA integration

Another source of contention has been the issue of former Maoist combatants who have been cantoned in various camps across the country. Their (non)integration in to society has been a source and cause of main obstacles to the constitution-drafting process. Though the CPA signed in 2006 had mentioned that the combatants would be integrated within six months from signing of the Accord, the modality and number of combatants to be into the armed forces has not been finalised.

2.6.1 UCPN(M)

It has been arguing for group entry of 10,000 former Maoist combatants and separate units for them.

2.6.2 Other parties

The other parties have been pushing for integration based on individual basis with no formal identity as a former combatant and their numbers at about 5,000.

2.7 Others

2.7.1 Constitutional Committee

The Constitutional Committee responsible for finalising the new constitution has been beset by problems from early on. Though initially the 15-member Committee was made up of those with legal backgrounds, it was later enlarged to 63 members to accommodate small parties and minorities.

2.7.2 No separate roadmaps

Another downside has been the failure to have separate mechanisms for running the government, peace process, and constitution drafting. The parties sometimes talk of integrating all the three issues and at times the need to separate them as the needs suit them.

Some unanswered questions

Source: The Constitutional Committee