Haritha's Musings: Nepal Promulgates New Constitution

The long drawn process of developing a new constitution for Nepal has ended officially. Nepal reached the historical moment with the new constitution scheduled to be promulgated on 20^th September 2015 by the President Ram Baran Yadav making it a federal, secular, democratic republic. For the past 65 year the mountain country has gone through periods of intense turmoil, unrest and armed struggle. The new constitution seventh one in line is believed to embody certain provisions from the previous six constitutions (since 1959) would also incorporate the ideals of various political parties.

Just days before voting on various clauses of the new Constitution, incidents of violence rocked the country. The simmering revolt brewed by the marginalised communities of Nepal comprising of Madheris, Janajatis and Tharus rocked the Terai region resulting in shut of the region for three weeks. As per their contention, the new constitution failed to accommodate their legitimate demands of true federalism leading to effectively disfranchise them. To quell the rebellion, Armed forces were called in resulting in the death of 40 people.

Nepal’s tryst with democracy began with the revolution in 1951 steered to liberate the nation from the autocratic rule of Ranas (1). The revolution spurred into action by two political parties- The Prajaparishad Party and the Nepali Congress and the leaders who spearheaded the cause were executed by Ranas. King Tribhuvan of the Shah Dynasty in the meanwhile fled to New Delhi and triumphantly returned back to fill in the vacuum created by the overthrowing of the Ranas. A quasi-constitutional system was in vogue under the regime of King Tribhuvan. The Monarch assisted by the leaders of the fledging parties as per the Interim Government of Nepal Act 1951 governed the land. Subsequently a new working constitution was adopted in 1959 (2). From 1955 the King’s son Mahendra slowly began to exercise greater control over the governance issues undermining the authority of the Cabinet. Nepali Congress under the leadership of Koirala won the elections in 1959. King Mahendra declaring the Parliamentary democracy a failure carried out a coup in the following year. He indicated that Panchayat System would govern Nepal and promulgated another constitution in December, 1960. Prime Minister and other cabinet ministers were then arrested and a party-less Panchayat system prevailed in Nepal for 30 years.

The Panchayat system had representatives from villages that constituted the Rashtriya Panchayat (National Parliament). But it constitutionalised absolute power of the King who had supreme authority over the Cabinet and Parliament. King Birendra succeeded his father in 1972. Amidst protests against his regime in 1980 he conducted a National referendum to decide whether Nepal should continue with Panchayat System or the Multiparty government. Panchayat system won narrowly and Birendra promised to appoint a Prime Minister selected by the Rashtriya Panchayat. By 1990 Nepali Congress with support of the Left parties launched a democratic agitation or Jana Andolan demanding the introduction of multiparty system. Finally King Birendra stepped down under pressure and in the first ever elections conducted in 1991 Nepali Congress formed an elected government. A new constitution was promulgated in 1990 facilitating the participation of multiple parties and curtailing the supreme authority of the King. In 1992, nation plunged into chaos owing to the economic crisis and escalating prices. The situation was soon brought under control through Operation Romeo and Operation Kilo Sera II. This repression soon resulted in radicalisation with people increasingly turning to Maoist parties for support.

Parliamentary elections were held in 1994 and 1997 and local election were held in 1992 and 1997. But unfortunately democratic system could never be consolidated due to Maoist insurgencies and undue interventions of the Royal Clan. From 1996 Communist Party of Nepal (Maoist) started Nepalese Civil War against the government to replace the parliamentary monarchy with Maoist revolutionary strategy. Sudden turn of events changed the fate of Nepal in 2001 with Prince Dipendra killing 9 members of the Royal family including King Birendra. He later occupied the throne for few days and following his death King Gyanendra (brother of King Birendra) took over. The new successor impeached the existing government and reappointed a new government in its place. Consequently country became very unstable and by 2005 King Gyanendra took over the executive powers and imposed a state of emergency ordering the arrest of all political leaders. By 2006, the rebellion against his regime intensified signifying the rise of Jan Andolan-II.

In January 2007, a seven party coalition assumed the control of the government and deposed the King marking the end of 240 year old Monarchy and declaring Nepal as Federal Republic. Governance was carried along the framework of Interim Constitution 2007. Following the elections in 2008 Maoist parties came to power and assigned the charge of framing a permanent constitution to a Constituent Assembly.

As per terms of the interim constitution a new constitution must be promulgated by May 2010 but was extended by a year due to various disagreements. But when the constitution was not ready even by May 2012, the Prime Minister dissolved the Constituent Assembly as its tenure expired and constituted a Second Nepalese Constituent Assembly was elected in 2013. This too has failed to deliver the constitution by the first one year dead-line and further contentions on various issues and disastrous earthquake in April and May delayed its promulgation. Finally the constitution was passed on September 16^th 2015. Out of the 598 members, 507 voted in favour, 66 abstained and 25 voted against it.

Salient Features of the New Constitution

The premise of the new constitution is based on concept of federalism, secularism and absolute sovereignty. Nepal is multi-ethnic and people speak at least 100 different languages. Further the society is stratified into upper-lower castes, indigenous origin-non indigenous origin, highlanders-lowlanders and hence highly polarised. The new Constitution consciously aims at curtailing dominance of any particular community and strives to provide equal representation to all communities. Through proportional representation of women, disabled, sexual minorities and other neglected groups in elected bodies the new draft brings about inclusivity (3).

Of the Legislative- Parliament with 275 seats- 165 seats will be directly elected. One seat will belong to each of the 75 districts and remaining 90 seats will be divided based on population. The remaining 110 seats will be proportionately represented by women, the Janajati and Madhesi ethnic groups and marginalised communities from various parties. Constitution enshrines various fundamental rights which include social, economic and cultural rights. Specific commissions are instituted for various minorities and marginalised communities. Nepal will now have a Parliamentary form of government with President elected by the Legislative-Parliament, National Assembly and provincial Legislative body. Prime Minister will be elected by Legislative-Parliament by simple majority. The constitutional council will nominate chief justice, head and members of constitutional commissions. Judicial Commission will nominate judges of Supreme Court, high court and district courts.

All the clauses of constitution except for issues related to sovereignty are amendable making it highly flexible. Necessary changes can be incorporated within the new draft with two-thirds of majority.

The momentous 66 years of Nepal’s journey towards in becoming a federal democratic republic has been widely appreciated by several countries.

Issues of Contention

The new constitution divides the country into seven states whose final boundaries are yet to be demarcated. Demarcation of new provinces might result in delineation of ethnically close communities. This issue is severely protested by indigenous Tharus community who are unhappy at the prospect of sharing the provinces with hill districts who might eventually dominate them (3).

Nepal is highly patriarchal society and the new constitution as claimed by the Women’s group indicates that a single Nepali woman cann’t pass on her citizenship to the offspring. If a Nepali woman marries a foreigner, their children will not be considered Nepali citizens. But a Nepali man’s child will be a Nepali irrespective of his wife’s nationality. This issue is met with severe opposition by the Madheshi’s who live in the Terai region along the Indo-Nepalese border. In these communities cross border marriages are quite common and such an act would be highly discriminatory. Nepal traditionally has been a Hindu country (the status was withheld nine years ago). But the new draft declares the state secular ordaining it with the responsibility of protecting religious sites and respecting the beliefs of the majority but the pro-Hindu groups are highly disappointed.

Bright Spots

Certain sections of people are highly elated at the prospect of promulgation of new constitution as it significantly ends the years of instability and chaos paving way for a better future. The new draft provides special quotas for low caste Dalits, indigenous groups and women in constitutional bodies. It also allows active participation of sexual minorities in states working apparatus.

Indian Interests

Any unrest in the Terai region that shares an extensive border with India will have negative implications on India’s security leading to influx of anti-Indian elements through the porous borders (5). Besides any destabilisation in Nepal can increase influx into India in the form of migration, illicit trafficking and would open up the possibility of extremists gaining entry into the Indian Territory. India certainly realises the importance of a stable Nepal and hence strongly supported the process of constitution-making and offered technical assistance. Indian foreign secretary has travelled to Nepal as a special envoy to attend the inauguration of the new Constitution. He congratulated the nation for unveiling a new consitition that would mark beginning of a new era and appealed to Nepalese leaders to address the concerns of the agitating communities. In 2005 the Lashkar terrorists after planting bombs in the Indian Institute of Science fled India through Nepal and reached Pakistan. The anti- Indian elements from Pakistan have been gaining entry into India along the Indo-Nepalese border. In 2006 several Indian Mujahedeen commanders and LeT operatives were arrested along the border by the RAW with the cooperation of Nepal authorities. Besides Indian leadership is strongly convinced of the fact that a strong, stable and peaceful neighbourhood can alone bolsters India’s efforts in safe guarding its borders.

Haritha's Musings

Monday 21 September 2015

Nepal Promulgates New Constitution

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