Category: Article

Report on the Conference by Convenor Dr. Bipin Adhikari
13 August 2018

The Conference on the Constitution of Nepal
11-13 August 2018
Hotel Soaltee, Tahachal, Kathmandu

Kathmandu University School of Law & the South Asia Trust

Rt Hon’ble Prime Minister KP Sharma Oli
Hon’ble Ministers / Former Ministers
Members of Parliament
Prof Dr Ram Kantha Makaju Shrestha, VC, Kathmandu University
Prof Suresh Raj Sharma, Founding Vice Chancellor, Kathmandu University
Senior Advocate Daman Nath Dhungana, Chairperson, KU Trusteeship Council
Distinguished guests
Ladies and Gentlemen

It gives me great pleasure to welcome you to this concluding session of the three day international conference on the new Constitution of Nepal. The Conference was a productive and satisfying event in terms of the quality of discussions and the diversity of the experts, practitioners and stakeholders who participated. I am glad to make this quick report on behalf of The Southasia Trust and the Kathmandu University School of Law (KUSL).

The opening plenary of this Conference on the evening of 11 August was addressed by President Rt. Hon. Bidya Devi Bhandari with addresses also by Subhas C Nembang, Chair of CA I & II and the Bangladesh jurist Kamal Hossain, among others.

Over the last two-and-half days, besides the opening session and this closing session, we held three plenaries and nine panel discussion under broad themes from constitutionalism, rule of law, economy to inclusion and implementation. There were three ‘focus sessions’ devoted to topics that we did not want to miss out under the broad themes – on motherhood, citizenship and the Constitution, on the place of the marginalised under the Constitution, and a look back at the Constitution of 1990.

Over the period of the Conference, approximately 7 dozen panelists and commentators shared their opinions and interacted among 220 participants. Twenty-five of the panelists and commentators were international experts, and many others expressed their point of view from the floor.

The Constitution was discussed against the background of Nepal’s constitutional and legal history, and the workings of the two constituent assemblies were addressed in detail. Issues such as rule of law and checks and balances, fundamental rights, federal structures, electoral system and inclusiveness, economic constitutionalism, the Constitutional Bench of the Supreme Court, and other matters were discussed in relation to the new Constitution.

Efforts were made to look at the new Constitution against the perspective of comparative constitutionalism, keeping in view the experience of India, Sri Lanka and Bangladesh, in particular, as well as the United States and the countries of Europe and the Asia-Pacific region. Some other international contexts were also taken into account. There was significant discussion on the implementation of Constitution, including most importantly the need for required laws and also the calls for amendment. By and large, the Constitution was singled out for its norms, values, institutions and procedures, while worries were expressed about implementation pathways. Several participants pointed out the need for reforming the text of the Constitution through amendments, to enhance ownership across the country and communities.

On the whole, the discussion in the Conference, happening for the first time nearly three years after promulgation, was able to bring forth ideas which will serve as profound commentary on the text. We have had a team of rapporteurs at work, and over the next two months will be processing all the papers, commentaries, opinions and concerns expressed in order to come out with a Conference Report. Thereafter, we plan to hold countrywide discussions even as our editorial team works on a book-lengths publications in Nepali and English.

For this closing session, with your permission, I would summarise some key points that came up during discussion:

• The experts and participants emphasised consistent and rigorous implementation of the Constitution. Those provisions that provide for support of the weaker sections of society must be given priority. The most deprived and marginalised communities must find the Constitution to their advantage, and this requires efficient writing and implementation of laws.

• The results of the three tier elections held in 2017 under the new Constitution must be reviewed to make sure that the electoral system protects the concerns of the people who have been affected in the matter of representation. Initiatives should be taken to reform the laws, where necessary.

• The laws regarding political parties and proportional representation should be reviewed in the best interest of the indigenous people and other marginalized groups.

• The federalisation initiative must get a boost to make it faster and effective, as the work thus far has been unsatisfactory. The delays have been due to the enormity of the task ahead and our capacity to work out necessary laws and procedures, but there is no way out but to get on with the task. The government should continue to work with the provinces and local governments to complete the unfinished task, and urgently complete the transition.

• The passage of major legislation to implement the commitment of the state to materialise fundamental rights is important. For example, the women’s rights under the Constitution,as well as the rights of sexual minorities, need appropriate legislation for their implementation.

• More model laws are necessary as a reference for the use by local and provincial governments. The Federal Government should make necessary arrangements to help develop necessary knowledge and skills.

• It is urgent to immediately fulfill the staffing requirements of local and provincial governments, and effective transfer of power is required.

• The government should do everything possible to reform the laws regarding the Judicial Council and Constitutional Council, and ensure quality in recruitment, transfer, disciplinary action and dismissal of judges. The law to regulate parliamentary hearing should also be enacted to make sure that legal standards are met with in this regard.

As promised, we the organisers of the Conference on the Constitution of Nepal, will be coming out with detailed analysis and recommendations within a couple of months. This has been an attempt to provide a summary of the discussions and conclusions of the Confernece. We will be submitting our forthcoming reports to the Rt. Hon. Prime Minister as well as the participants and stakeholders in due course.

I thank you for listening.

Bipin Adhikari
Convenor of the Conference

[Soaltee Crowne Plaza, Kathmandu]

Rt Hon’ble President Madam Bidya Devi Bhandari
Hon’ble Subas Chandra Nemwang, Chair of Constituent Assembly I & II
Dr Ram Sharan Mahat, Member CA I & II, and Former Minister
Dr Kamal Hossain, Constitutional Expert, Bangladesh
Professor M. P. Singh, Constitutional Expert, India, 
Professor Qianfan Zhang, Constitutional Expert, China
Professor Suresh Raj Sharma, the Founding Vice Chancellor of Kathmandu University
Senior Advocate Daman Nath Dhungana, the Chairperson of Kathmandu University Trusteeship Council
Dr Ram Kantha Makaju Shrestha, VC, Kathmandu University

Distinguished guests

Ladies and Gentlemen,

It is with great honor and privilege that we welcome each and every one of you to this Conference on the 2015 Constitution of Nepal on behalf of the Southasia Trust and Kathmandu University School of Law.

I heartily welcome our distinguished guests, from near and far, some of whom have journeyed long to join us here in Kathmandu to discuss an incredibly significant document in the history of Nepal.

Please allow me a moment to recognize the presence of the head of state the Right Honourable Bidya Devi Bhandari. Additionally, a special welcome to our international guests from more than a dozen countries who have joined us here today. And of course, we are grateful for the attendance of approximately 150 participants including panelists, commentators and presiding experts and practitioners.

Nepal has a new Constitution again. The document promulgated in 2015 is our latest effort to live with constitutional democracy and constitutionalism. It must be recalled that we had new constitutions in 1948, 1951, 1959, 1962, 1990 and 2007 as well. So, we are a country and people that have already tasted six constitutions in the span of 59 years; the 7th constitution was drafted over a span of approximately eight years. However, the 7th Constitution is distinct in several ways. To begin with, this is the first Constitution in Nepal built and adopted by an elected Constituent Assembly through a protracted political process. This is the first republican constitution. While these features add to the democratic credentials of the document, these changes must be understood in a larger political context.

The new Constitution builds on the consolidated parliamentary system of government at the federal and provincial levels. It now has additional features to ensure stability in the parliamentary leadership. A three-tier system of cooperative federalism has been worked out, that allows the local governments separate constitutional competences and safeguards. There is a 7-province model at work. The list of fundamental rights guaranteed to Nepali citizens has been revised again. Many socio-economic and cultural rights find a place of prominence in the Constitution. The directive principles and policies of the state, which explain the constitutional horizon of the change, although not enforceable at any court, will now be under the jurisdiction of the parliament. There are now parliamentary machinery and procedures that will monitor the efforts of the state to realize these constitutional commitments.

The right to proportional inclusion, that allows participation in the state structures to almost 16 groups of deprived and marginalized people, remains the vanguard of the new constitutional design. Many new constitutional commissions have been created to ensure protection to the people, who need extra care. There are efforts to ensure equality, identity and protection of sub-cultures. The state has become secular. The system of judiciary remains integrated for all levels, but the Constitution has created judicial committees of elected officials that allow them to exercise judicial power that is most relevant at the grassroots level. I will leave the further evaluations of these themes for the discussions in the next two days. All I want to emphasize here is that the nature of the state in Nepal is in the process of change, and this change, in the matter of executive, legislature and judiciary as well the rights of the people, will become qualitative as we focus our efforts in strengthening the regime with interaction with the most vulnerable and deprived communities. This calls for responsible and participative law making.

The 2015 Constitution of Nepal is a document of compromise of competing values, norms, standards and procedures. After over 67 years of challenges including great political upheavals, change of guard in the political leadership, continuing economic deprivation, a violent conflict of a decade, geopolitical pressures, and victimisation of the constitutional process, we have finally been handed a document that makes new promises to the people. It upholds the principles of equality, diversity and growth. Anyone who has read the 2015 Constitution will agree that it reflects and addresses the subtleties of the makeup of Nepali society, with its diversity in demography, culture and geography. Whichever way one looks at it, the promulgation of this Constitution was a significant event because it completes the peace process, closes the uncertainties regarding the political system and paves the way for future constitutional progress.

I believe that the life of a successful constitution, no matter how democratic and human rights-oriented it is, depends on its consistent and effective implementation as well as timely reforms based on new developments in the country. Only when we, as the people, are able to foster a progressive and forward-looking environment can a constitution truly evolve to reflect a society, its people and their challenges. Without such an environment for rigorous implementation, continuing reviews and engaged citizens, the constitution is, what Late Prime Minister B. P. Koirala said, only “a straw of corn,” after all. In other words, as Albert Einstein famously stated, “The strength of the Constitution lies entirely in the determination of each citizen to defend it. Only if every single citizen feels duty bound to do his share in this defense are the constitutional rights secure.”

This Conference gives us the opportunity to understand Nepal’s new Constitution, analyze its contents, look into it in the larger socio-economic and comparative context, and review the implementation challenges. It has been three years since the Constitution was promulgated; the implementation of many articles in the Constitution has been set in motion. The norms and standards defined by the Constitution have begun to materialize. Three years later, however, we still see new challenges unfolding, and we must stay open-minded and progressive if we are to truly make this Constitution a document of our time. I am sure our deliberations here will help us look backward and move ahead with renewed determination.

In spending the long but rewarding hours preparing for this Conference, I have hoped that it is productive and informational to all our attendees. Through the panels that we have organized for the next two days, I hope that we are able to exercise timely thoughts, analysis, and conclusions on various discussions topics, which span from the constitutional rule of law, checks and balances to the rights of marginalized to vulnerable communities, inclusion, federalization and many other important issues.

I expect that this Conference will achieve its objective of creating a pool of knowledge that will help the country and people move forward with renewed faith and determination.

Before I conclude I also want to thank First President Dr Ram Baran Yadav for kindly sending his written message to the organizers for the successful completion of this Conference.

Thank you once again for being here.

[Convenor Dr Bipin Adhikari introducing the Conference at the Launching of The Conference on the Constitution of Nepal, August 11, 2018]