Our Constitutions

A Brief History of Nepal

No Constitution..

• Nepal governed by Hindu norms and values (Dharmasastra)

• Caste system was prevalent

• No standard to govern the relationship between

• Hindu belief: Gave kings all the powers with no restrictions

• Then came Jang Bahadur (1846) who codified laws, introduced rules for governance (National Civil Code of 1854). These laws were mostly concerned with relationship of the castes

Nepali Constitutions • Nepal had six constitutions: 1948, 1951,1959,1962,1990 and the Interim Constitution of 2007

• After Indian independence, Padma Shamsher promulgated Government of Nepal act 1948 to appease the people. It was written by the help of Indian experts

• But he was kicked out of office soon and the act didn’t come into operation

• Power was restored to the monarchy in 1951 and an Interim Constitution was drafted by the participation of Ranas and Nepali Congress with the help of Indian experts

• This constitution lasted 8 years (10 governments were formed during these 8 years and constitution was frequently amended). This political battle gave King the upper hand

Nepali Constitutions ….• Then came King Mahendra who had little intention to hold constitution assembly election• After coming under pressure, Constitution of Kingdom of Nepal was formed in 1959 with the help of British experts• Parliamentary election was held – BP Koirala led Nepali congress won two-thirds of the seats• But after 18 months, King Mahendra declared emergency, dissolved the parliament. He declared that a parliamentary system was unsuitable for Nepal due to lack of education and political consciousness in Nepalese• In 1962, Panchayat Constitution was drafted --- in one month• To appease agitating students, referendum was held in 1979 to choose between Panchayat and multiparty system. But the referendum was manipulated • Finally Jana Andolan I restored power back to the people and the 1990 Constitution was drafted

Making of the 1990 Constitution • It was largely the work of Nepali Congress and CPN(UML)

• It was made through greater consultation of people unlike previous Constitutions

• The drafting commission disregarded recommendations related to rights and demands of Dalits, ethnic and marginalized communities, women and rural people

• The cabinet and subsequently the King made changes in the drafts prepared by the commission

1990 Constitution • Basic structure of government was as in UK and India with prime minister and ministers are members of the legislature

• A full judicial system was finally set up• It was a multiparty democratic system• Had some provisions for human rights• Hindu state

• It recognized all mother tongues as national languages and Nepal as a multiethnic and multilingual country

• For Accountability it had several committees: Auditor General, Election Commission, Public Service Commission, Commission for Investigation of Abuse of Authority. Human Rights Commission was added on the 2007 Interim Constitution

Underlying Principles in the 1990 Constitution

• Preamble: …sovereign authority inherent in the people…this Constitution made with the widest possible participation of the Nepalese people, to guarantee basic human rights..to consolidate Adult Franchise, Parliamentary system of Government, Constitutional Monarchy and Multi Party Democracy…bond of unity on the basis of liberty and equality…Rule of Law…I promulgate this Constitution on the recommendation and advice of the Council of Ministers

• As stated in the preamble of the Constitution, there were four interconnected principles in the 1990 Constitution: Multiparty Democracy, Parliamentary System of Government, Constitutional Monarchy, and National Unity

Multiparty Democracy• Sovereignty (power and authority) vested in people as opposed to the King (as in the previous Constitution). 1990 Constitution recognized sovereignty of the people for the first time

• Dignity, liberty and rights of individuals recognized• Periodic election is required and the parliament had two houses

• Party must establish a minimum degree of public support and establish internal democracy within the party

• For check and balance, power was divided among the King, Parliament, Council of Ministers and the Judiciary

• A number of independent authorities were established

Multiparty Democracy..drawback• The state was unitary and centralized. But the Constitution directed government (through directive principles, Art 24 and 25 which were not legally binding) to promote decentralization of administration

• The nature of Nepali Democracy depended on the nature of political parties and their behavior in the government and in opposition. But there was a lot of power struggle and no government lasted for its full term

Constitutional Monarchy• Constitutional monarch expressed the unity of the country• King was obliged to abide by the constitution, but his conducts couldn’t be questioned in court or discussed in the parliament and his properties weren’t taxed

• King was supposed to make his decision on the recommendation and advice (not instruction) of the Council of Ministers • These words gave room for ambiguity and even an upper hand to the King• As a result, there were several examples of contention between Monarchy, Parliament and Supreme Court

• And finally, King Gyanendra used article 127 (King could issue order to remove difficulties to bring constitution into effect) to form Council of Ministers of his own choice and the country was governed from 2002-2006 (until Jana Andolan II) under the authority of article 127

Constitutional Monarchy … and the Army

• Constitution tried to bring the Army under the government

• National Defense Council was formed as prime minister as the chair

• King was the supreme commander but was supposed to manage the army under the recommendation of National Defense Council

• But no prime minister was able to mobilize and control the army. Girija Koirala resigned as prime minister because the Army didn’t cooperate with him

•Competition between political parties and practice of dissolving the house prior to its term gave King the opportunity to interfere

National Unity• Constitution tried to promote national unity by a bond of common aspiration and faith ….irrespective of religion, race, caste, tribe…(Art 2)

• But unity was driven by a specific sense of Nepali identity based on one religion, one language and one culture, even tough Nepal was described as multi-religious and multilingual

• All the state powers were centralized, and minorities marginalized

• Upper house could have been used to represent minorities, but was it rather reproduced party membership

Language, Religion and Culture

• Nepal was declared a Hindu state and King an ‘adherent of Aryan Culture and Hindu Religion’ (Art 27), but King was also declared ‘symbol of Nepali nation and unity of Nepali people’.

• Constitution recognized all mother languages, but only instructed primary level education in mother tongue. Implication – no state assistance to promote or learn in their own language

• Constitution prohibits creation of political party ‘on the basis of religion, community, tribe, caste or rationality’ (Art 112(3))

• It forced minorities to operate through political parties over which they had little influence

Why the 1990 Constitution failed• Elites had upper hand. Affirmative actions, better representation and decentralization weren’t promoted

• Political parties failed in establishing participatory democracy

• Politicians were corrupt and indulged in favoritism

• Unconstitutional initiatives by the King

• Supreme Court misread the spirit of the constitution (In 1998 the court invalidated the use of Maithili and Newari languages in local administration)

• Constitution was unable to address the diversity of Nepali people

• Representation of marginalized groups worsened under the 1990 Constitution

• Maoist insurgency in mid-1990

Who is to blame ? • The Constitution itself?

• The King?

• Political parties?

• Supreme Court?

• Maoists?

• Civil society?

Lessons to be learned

• Constitution making should be more participatory and everybody’s voice should be heard

• Equality of opportunity and access – affirmative actions and empowerment of the disadvantaged

• Right to education, health and security should be upheld. Directive principles should be binding and constitution implementation commissions should be established

• Reform of political parties…not sure how?

• Clarity of language in the Constitution

Jana Andolan II • Jana Andolan II was successful in bringing the king to his knees who conceded that the sovereignty belonged to the people. Immediately, the House repealed all provisions related to the monarchy

• The seven political parties and Maoists came together to respond to the wishes of the people – to establish new social, political and economic order

3/20/2010

The Interim Constitution of Nepal2063 BS

Agenda

• Overview• Fundamental Rights• Executive Body• Legislature-Parliament• Legislative Procedure• Judiciary• ‘Special’ Provisions

Overview

• Preamble– “WE, THE PEOPLE OF NEPAL, IN EXERCISE OF THE SOVEREIGN POWERS AND

STATE AUTHORITY INHERENT IN US…”

• 25 Parts

• 4 Schedules

Fundamental RightsRight to FreedomRight to EqualityRight against Untouchability and Racial DiscriminationRights regarding Publication, Broadcasting and PressRights regarding Environment and HealthEducation and Cultural RightsRights regarding Employment and Social SecurityRight to PropertyRights of WomenRight to Social Justice

Rights (contd.)• Rights of Children• Right to Religion• Rights regarding Justice• Right against Preventive Detention• Right against Torture• Right to Information• Right to Privacy• Right against Exploitation• Right regarding Labor• Right against Exile• Right to Constitutional Remedy

Executive Body

• Power vested in the Council of Ministers• Executive Functions exercised as Government of Nepal• Structure:

– Prime Minister• Council of Ministers

• Appointment of non-member of Legislature-Parliament as Minister– PM may appoint any person as Deputy Prime Minister, Minister, State

Minister, or Assistant Minister, on the basis of political consensus

Constituent Assembly• Formation

– One member elected from each geographical constituency• 205

– Members elected according to the proportional representation system• 204

– Members nominated by the Interim Council of Ministers• 16

• Composition– 1/3 women

• Quorum– At least ¼ need to be present

Legislature - Parliament

• 330 Members (329 actual)• Qualifications:

– Citizen of Nepal– At least 25 years of age– Committed to the spirit of the ‘People’s Movement’– Not holding any Place of Profit

• Vote of Confidence– ¼ of total number required to propose a no-confidence motion– Decided by 2/3 majority

Legislative Procedure

• Introduction of Bill Bill Passage Resolution

Legislative Procedure

• Introduction of Bill Bill Passage Resolution

• Introduction– 7 day’s notice to Secretary General or Secretary of Legislature-Parliament

(5 days for a Govt. Bill)– Copies made available 2 days before introduction

• Passage– Propose bill in the House

• If accepted, then discuss clause by clause

– Move motion • Simple majority is enough

• Withdrawal/Certification

Judiciary• Courts:

– Supreme Court– Appellate Court– District Court– Constituent Assembly Court*

• Supreme Court– Highest court– Inspects, supervises, and gives directives to its subordinates– Court of Record (contempt for itself and subsidiaries)– Makeup:

• Chief Justice – PM Appointed, 3 years as Supreme Court Judge

• 14 Judges– Appellate Judge for 7 yrs/15 yrs experience/1st class officer for 12 yrs

Judiciary (contd.)• Appellate Court:

– Judges appointed by Chief Justice • with Judicial Council Recommendation

– Criteria:• Nepali Citizen• Bachelors Degree in Law +

– 7 yrs exp. as 1st class officer– 10 yrs exp. as advocate or senior advocate– 10 yrs exp teaching law – 10 yrs exp. in related field

• District Court:– Judge

• Nepali Citizen with Bachelor’s degree in Law +– 8 years exp as 2nd class officer / advocate – Passed the written and oral exams of the Judicial Council

Judiciary (contd.)• Judicial Council

– Inquiries against a judge– Chairperson – Chief Justice

• Members:– Minister of Justice, Senior-most Judge of the Supreme Court, Jurist

nominated by PM, Senior Advocate / Advocate with 20 yrs experience appointed by Chief Justice

• Judicial Service Commission– Appoints, transfers, promotes gazetted officers– Chairperson – Chief Justice

• Members:– Minister of Justice, Senior-most Judge of the Supreme Court,

Chairperson of the Public Service Commission, Attorney General

Other Notable Provisions

• Responsibilities, Directive Principles and Policies of the state– Responsibilities of the State– State Policies

• Environment related

• Provision Regarding the Army

• Emergency Powers

What is the Constituent Assembly

• A body of representatives, elected and/or nominated to write a constitution.

• CA was elected in April 2008, for a term of 2 years with a possible extension for 6 additional months.

• 25 political parties represented.• The Maoists hold a majority of the seats.

Structure of the CA

• Currently consists of 601 members– 240 elected in a direct vote in constituencies– 335 elected through proportional representation

from party lists– 26 are nominated “prominent persons of national

life”, i.e. experts

• Chairman (Subash Nemwang), vice-chairman (Purna Subedi), secretariat, committees.

Role of subject committees

• Each responsible for one part/chapter of the constitution

• Consult experts• Deliberate and work out a political consensus

on contentious issues related to their field• Present a rough draft to the full house• Full house discusses and amends the draft• Submit the revised draft

Preliminary constitution draft

• CA members visit their representative constituencies to gather public opinion

• Technical committee drafts a rough draft• Discussion and adoption of the draft by the

drafting committee• Discussion of the draft by the full house

Procedures to pass a constitution bill

• The CA shall vote on the preamble and each article• There must be at least 2/3 members present• The motion must pass unanimously• If unanimous consensus not reach, the disagreeing

members will hold a consultation session and CA will re-vote

• If decision not reached, there will be voting again, and if there are 2/3 of the members present and 2/3 of those present vote for the bill, it shall pass.

• This discussion will be recorded for transparency and future reference

Public involvement

• Release of preliminary draft for public feedback.

• Revision of the draft by drafting committee based feedback.

• Also a provision for referendum in case of severe disagreement

Finally!!

• Final draft by the drafting committee based on public response.

• Final voting on the draft constitution by the full house.

• Acceptance of the new constitution by the CA.• CA dissolved.

Systems of Government: Parliamentary vs. Presidential(Executive Structure)

Parliamentary Presidential

Head of state is different from head of government The president is both head of state and government

Head of state is ceremonial and decided by some electoral college

Head of state is directly elected

Head of government is elected from the parliament Head of government is the president

PM appoints a cabinet of ministers to run the government. Responsibility for government actions is shared among the ministers.

President appoints a cabinet but executive power is vested entirely in the president. His ministers are simply advisors.

PM can be removed by vote of no confidence and PM can dissolve the parliament.

President has no power to dissolve the legislature but can be removed by impeachment.

PM and his cabinet are members of the legislature President is completely separate from the legislature and he and his cabinet cannot be members of it.

Systems of Government(Jobs of the Legislative)

1. Pass Laws

2. Approve the Budget

3. Appoint the head of state and government (parliamentary system)

4. Remove the head of government

5. Approve the appointment of ministers and other personnel as well as dismiss judges.

5. Debate national issues and oversee actions of the executive.

Systems of Government(UN resolution for characteristics of the Judiciary)

1. Independence

2. Impartiality

3. Power to decide all judicial issues

4. Interference free and not revisable by other bodies

5. Everyone should have the right to a trial

6. Judges must have ability and integrity and their terms and compensation must be protected by law.

PLA Integration• 14 years since the start of the insurgency• Nearly 13,000 people killed and nearly

200,000 people displaced• 7 cantonments and 21 satellites across the

country, under partial UN monitoring• 19,602 PLA members still part of the

cantonments

The Committees• Special Committee for the Supervision, Integration and

Rehabilitation of Maoist Combatants is tasked with this integration effort

• The committee consists of nine members, two representatives from each of the three largest parties – the UCPN (Maoist), the Nepali Congress, the CPN (UML) – and one from each of the three Madhesi parties

• High-Level Political Mechanism (HLPM), which consists of the leaders of the 3 main political parties, was recently created to own responsibility for decision-making on key issues – such as the number of combatants that will be integrated into the national-security institutions, as well as the norms and modalities of integration

The People

• Nanda Kishor Pun (aka ‘Pasang’) is the PLA’s chief commander

• Barsa Man Pun (aka ‘Ananta’), a Maoist member of the Special Committee and former deputy commander of the PLA

Special Committee Proposal

• Individual Recruitment (as opposed to unit)• PLA combatants can take one of three

options:– Work in the party organization– Rehabilitate in the society– Integrate into one of the 4 national security

institutions: the Nepali Army, the civilian Nepali Police, the Armed Police Force or the Department of Investigation

• Up to 5000 combatants to be integrated

Points of Contention

• Maoists opposed to individual recruitment, 5000 is too small

• NA opposed to unit-wise integration• Maoists opposed to education requirements for army

levels (because the education system is part of the bourgeois system the Maoists are trying to bring down)

• Maoist priority to integrating higher-ranking Maoist commanders

• NA opposed to accepting divisional commanders because they are more strongly motivated by party ideology or “ideologically indoctrinated”

Points of Contention

• Ruling parties want the process of integration to be complete before the new constitution is completed

• Maoists trying to stall integration until the CA decides on a new national security policy

Common Themes

• Lots of fluff, very little substance• Forming committees to satisfy a group• Dissolving committees because a party walks

away because of conflict• Lack of trust: political parties dont trust each

other. Nepal doesnt trust India. People don’t trust the govt and the elected officials with their responsibilities

Concerns• The lieutenant-level PLA members are the most

concerned about individual-level recruitment but if the Maoist upper brass has to give in during the course of negotiations, unit-wise integration would probably be the first thing they give up

• Maoists trying to leverage the cantonments to strengthen their position in amending the Army Act and rewriting the constitution, effectively trying to delay the integration efforts

• There is always a possibility that the political parties or the Maoists might not be in agreement with the decision reached by the Special Committee

Bibliography

Diversity and Secularism

History & Origin of Discrimination-Sabin

Diversity (Religion)Total Population: 29 mil (2009 estimate)

Diversity (Language)

92 different languages

Diversity (Caste/Ethnicities)Total Population: 29 mil (2009 estimate)

103 different castes and ethnic groups

History• In 1768, PNS unified Nepal and characterized Nepal as “a garden of 4

caste and thirty-six varnas.”

• However, the unification introduced Hindu and Caste domination in bigger scale.

• The new unified Nepal was guided by the principles of Hindu Shastras and Laws.

• Mission: To build “asali Hindustan”

History

• Jung Bahadur Rana indroduced the first Nepalese code: Muluki Ain in 1854.

– Codified Hindu dominant system and Caste hierarchy

– Placed Tagadhari Brahmin and Chhetris on the top and declared indigenous people as Matwali (alcohol drinking group).

History

• Panchayat Era: (1960-1990)– “One language, One Dress” was officially promoted

– To become citizens of Nepal, people were required to speak khas Nepali Language and follow hindu religion.

– Constitution of Nepal 1962 declared Nepal as Hindu Kingdom for the first time and discouraged any debates pertaining to national culture by calling them Communal and anti-national.

History

• Advent of Democracy and New constitution in 1990– The constitution characterized Nepal as “a multiethnic, multilingual

kingdom” and at the same time declares Nepal as “a Hindu Constitutional Monarchial Kingdom.”

– Failed to address indigenous people

– Result: • Discrimination, Civil war….• Maoists were able to exploit their anger to support their “People’s

War”.

History• Interim Constitution (2007) and its efforts:

– Declared Nepal as a Federal Democratic Republican State.

– Represented a significant step forward over past constitutions in specifying diversity and social inclusion for people in Nepal.

– Rights such as freedom and equality, against untouchability/racial discrimination, women and social justice were more clarified than past constitutions.

– It also declares that “ all languages spoken as mother tongues in Nepal are the national languages of Nepal and the Nepali language..shall be the language of official business.”

New Constitution and how diversity and social inclusion can be ensured? (from CCD article)

Find ways to guarantee basic human rights by specifying effective implementation mechanisms and procedures.

Build federal structures suitable to the demographics of Nepal considering its diversified ethnic, geographical, social, and cultural structure, distribution of its resources and other ground realities of the country.

Provide adequate independence and rights to constituent local regions under federal structure.

Prioritize the rights of minority groups, Madhesi, Dalits and women.

Provide for effective and participatory local self governance.

Gender Issues – Citizenship

Demands made by a coalition of women’s groups:• No discrimination shall be made against any

citizen in the application of general laws• There should be a provision of equal rights to

citizenship for women and men.– Women allowed to pass on their citizenship to their

children– A foreign man married to a Nepali woman should be

allowed to acquire Nepali citizenship

Gender Issues – Equality • Equal ancestral property rights for sons and daughters

– A law has been passed to this effect, but now has to be in the constitution

• Equal pay for equal work• No gender discrimination in employment decisions

– army regulation prohibits employment of married women in combatant forces

– 2001 Supreme Court ruling that said women not allowed foreign employment without prior approval from a guardian or the government

• Equal access to state resources• Equal ownership rights• Equal rights to decision making in marriage, divorce and reproduction• Equal participation of male family members in domestic chores

Proportional representation• 50% of seats reserved for women in:– Legislature-Parliament – Council of minister– Judiciary– Commissions such as CIAA and National Security

Council– International representation posts– All political parties• At least 1 woman as President/ Vice-President of party• At least 1 woman as Speaker of Deputy Speaker

Women development• Right to free education up to graduate level• Right to reproductive health– Eg: make confining women to cowsheds after giving birth

illegal• Right to special privileges from the state for

professional development• Right to free legal aid from the state• Special reservation for women in education and

employment– Unemployment allowances if unemployed– Tribhuvan University’s attempt to reserve seats for women

and minorities was deemed invalid by the Supreme Court

Protection• No woman should be subjected to forced labor and

work without appropriate remuneration.• Right to form trade unions for protection of rights and

interests• Violence, sexual harassment and sexual exploitation at

work place and at home is punished and victim gets compensation– Eg: marital rape

• restrictions on publication, broadcasting or display of material that advertises women as sex objects

• Provision for a six member National Women and Gender Justice Promotion Commission for rights protection and implementation of pertinent laws.