Bipin Adhikari
Constitutional Law, Governance & Public Policy Issues
Home   About   Contact Us  Archives



Nepal Consulting Lawyers Inc

B. P. Koirala Archives & Records

Towards the New Constitution

The days ahead, however, are not that rosy. The Constituent Assembly is still without any compromise scheme about the form of government that will suit this country. It is still without a workable scheme on how the concept of devolution of power has to be implemented in a society which has already been torn apart by internal challenges of extra-constitutional strengths.

Bipin Adhikari
Republica, January 01, 2010
Source: Republica

The year 2010 is going to be a crucial one for Nepal. This is the year Nepal is expected to have its sixth constitution, a new constitution. There is a point.

What is remarkable about the new constitution is not actually that it is the sixth one. It is the first constitution being written by the sovereign people themselves through their elected representatives assembled at the Constituent Assembly. This is all happening for the first time in Nepal´s history. It is also the first constitution that Nepal is venturing into in the twenty-first century - wherein virtues of democracy, rule of law and limited government are no longer contested as a weapon of cold war.

As this constitution, being drafted and finalised by the Constituent Assembly is to be adopted and promulgated by May 29, many assume that it will end all the political problems and the transition that we are in. The constitutional democracy in Nepal started to derail after the Communist Party of Nepal (Maoist), conceived as a terrorist outfit at one point, threatened the then prime minister Sher Bahadur Deuba in 2002 not to hold parliamentary elections, which was already due, or face physical action against the electoral candidates.

Many things have changed ever since. The rift between the monarch and the mainstream political parties has led to the closer alliance between the parties and the Maoists. The traditional state was dismantled. It was an accepted fact that the democracy Nepal was ushering in, was no longer a credible one.

The new constitution is being drafted to solve so many issues apart from further democratizing the constitutional polity. The details are not very clear. What is clear is that these issues are coming up directly or from the sidelines since 2002.

The apparent goal, as the interim constitution has proclaimed is to achieve progressive restructuring of the state in order to resolve the existing problems of the country relating to class, caste, region and gender. The country is also to be federalized although without any white paper in the hand. New institutions are to be created to make Nepal an inclusive state, although here are so much of differences in the basic understanding about what inclusion really is. This is being done after the change in the balance of power in the country, and in the environment of a fragile state. Anything seems to be possible. The institution of monarchy that formed this country and gave it an identity in the historical process is no longer on the scene. It is up to the people to decide what they want. This is true at least in principle.

The days ahead, however, are not that rosy. The Constituent Assembly is still without any compromise scheme about the form of government that will suit this country. It is still without a workable scheme on how the concept of devolution of power has to be implemented in a society which has already been torn apart by internal challenges of extra-constitutional strengths.

The recently released exhaustive list of fundamental rights and directive principles of state policy by the CA Committee on Fundamental Rights and Directive Principles is not going to impress the country's lawyers and many other critical thinkers here. The list is not without its built-in problems, but even assuming that the problems will be sorted out at a later stage, there are other crucial issues still unattended to. One such problem is that the list is without judicial sanction.

The report of the Committee on Judicial System is one of the issues here. It recommends many infamous provisions in the new constitution which belittles the parameters of the Supreme Court as the guardian of the constitution. It robs the power of judicial review from the Supreme Court in significant sense. It can neither interpret the constitution in important sense, nor can it judge upon the constitutionality of any law where it matters the most. The report also makes sure that the Supreme Court and its judges are under parliamentary control in all matters relating to their appointment, dismissal and the job of judicial decision making. A Supreme Court which lacks independence, which has to be accountable to a legislative committee, and which is always under the threat and duress of a legislative majority cannot protect any fundamental rights whatsoever.

Again, the CA Committee on the Determination of Legislative Organ has produced its report based on the parameters of the parliamentary system because the committee leadership belongs to the Nepali Congress. In the same vein, the Committee on the Judicial System produced its report proposing a judiciary almost committed to the government because its chairperson belongs to the UCPN (Maoist), which does not believe in the independence of the judiciary and its power of judicial review of issues of unconstitutionality. The values that both these parties have built are almost irreconcilable on fundamental grounds.

Some outfits are strongly advocating the right to self-determination of the indigenous people. Some others fear about its extra-constitutional proportions. Although a sub-committee constituted to advise the Constituent Assembly Committee on Restructuring of State and Distribution of State Powers on the very issue has already submitted its report, it does not in any significant sense address the magnitude of the issue, and its complexity and implication in a constitutional framework which is to be based on democracy and constitutionalism. It offers little in the way of concrete suggestions or strategies for realising the claim for indigenous self-determination in Nepal. The issues like federalisation of the country based on ethnicity and grounding of rights jurisprudence on the concept of "agradhikar" put additional dimensions of the unresolved controversies. The road ahead is not clear.

A credible defence force remains one of the best means by which to guarantee security to the nation in a variety of ways. It must be kept outside the day-to-day politics, and attempts to bring abrupt change in the institution must also be resisted. However, the attempt to establish a national defence council where there is no representation of the chief of army staff is a very wild arrangement. It neither serves democracy nor any national interest. The provision of compulsory military training to youths without the leadership and support of a disciplined army is not a viable concept. All of the successful small states practice this to some extent. The provision serves well only when there is explicit determination to keep the army out of any military alliance, soft or hard, and its politicization thoroughly prevented. The interests of each regional power can also be preserved only by preventing the domination of the country´s force by one of them, or any other outside the region.

It is in Nepal´s enlightened national interest to make herself a neutral centre of trade, commerce, communications and finance, useful to all powers, and capable of absorbing and integrating their presence and influence. Unfortunately, the committee report is without any direction in this area. It does not even consider and take a position on how to preserve access to reasonably priced and secure supply of oil in place of the current India guarded supply system. There is no direction about the national food security strategy, an all time crucial issue. It is surprising how a country can preserve its national interest without a clear concept of internal security challenges like climate change and floods and natural disasters affecting a large segment of the people, like earthquakes.

The world has never been a safe place for small states. And Nepal is no exception. It has become even less so with the advent of regional rivalry, economic conflict, scramble for energy and mineral wealth and terrorism. One does not have to be Sam Huntington or Donald Nuechterlein or Alexander George or Robert Keohane to understand these basic survival issues. The point is why are these issues being ignored?

All this shows that Nepal is still in a very difficult phase. It must go ahead, keeping these issues in mind. At the moment, the only sustainable way for Nepal is to go for a framework constitution that represents the existing consensus in our political society, leaving the rest of the issues for the future. It is possible to solve all these issues over time. It is, however, not a viable option for us to solve everything now. Nepal´s geopolitical situation is not in its favour. But, we can certainly wait and see for a favourable environment as we go along.
(Bipin Adhikari is a constitutional expert and writes for different vernaculars on constituent assembly.)

Copyright @ Bipin Adhikari,