In the fragile quest for rule of law

The Second Constituent Assembly (CA) of Nepal finally submitted a draft constitution. A draft was held up earlier for a vast variety of reasons, the major one being a lack of consensus amongst all the political parties. Finally the big four political parties: Nepali Congress (NC), the Maoist (UCPN), Madhesi People’s Rights Forum (Democratic) and the Communist Party of Nepal (UML) on June 8 signed a deal to bring the constitution out at the earliest. There was growing public anger against the political class especially after the traumatic events of the recent earth quake which struck Kathmandu and its adjoining areas. 

The four parties that signed the sixteen-point agreement in effect left contentious issues that lie at the heart of the problem. Some issues which remain unresolved are: What will be the names of the provinces? Will they be based on ethnicity as demanded by the Maoists? And finally, what will be their respective boundaries? The names of the states will be decided by a two third majority of the respective assemblies. Needless to say the smaller parties took the matter to Supreme Court which ruled in their favour. 

The law makers responded by saying that it was a clear case of judicial over reach. Demographically Nepal’s population is roughly divided into two, hill centric or those who call the shots, and plain centric (Madhesi). Both feel this issue dilutes federalism and some law makers feel that they are defying the judiciary. Both these groups feel that instead of sorting out the problem this move is going to open another can of worms as a lot of unfinished business is still left.

Every effort is being made to gather suggestions from the people. As per news reports, a draft suggestion collection team has been set up, which is visiting every district and sending forms up to the village grassroots level, the process to be completed within a specified time (fifteen days). 

Recently Prime Minister and Nepali Congress President Sushil Koirala has said that the new constitution would be promulgated by bringing consensus amongst all parties, including those protesting and those outside the CA. The  party cadres  realize that such a moment in history will not come often.  However, there are a lot of people and political parties who still are not fully immersed into the process and there is a lot of resentment against the draft constitution which can best be described as a job “half done”.

The draft constitution consists of 37 Parts, 297 articles and seven schedules. What is perhaps left unsaid is the word, “secular”. As a result on 12th July the Vicariate of Nepal submitted a memorandum to all the major political parties urging that the word secular be added. There are at least a million Muslims and around 2.5 million Christians who are demanding this. The conflict arises because Nepal’s, pro-Hindu Rastriya Prajatantra Party, the fourth largest party in the parliament is vociferously demanding that the constitution declare Nepal a Hindu nation.

Restructuring  of the Nepalese state is dealt with in Part 5 wherein it clearly defines the creation of eight provinces; it talks about distribution of state power and distribution of revenue as well. This has left the issue of federalism quite unresolved, bringing out issues addressed earlier in the past and comments from a group of civil society activists, academicians and anti corruption experts who forwarded a 20-point suggestion to the Constituent Assembly. They also spoke on issues of press freedom, code of conduct of political parties, government functioning and a host of other issues. Part 3 comprehensively covers the rights of a citizen and starts at article 21 and goes up to article 51.

The constitution has made citizenship exclusive rather than inclusive and goes against the very spirit of people friendly article 6 and 7 of Indo-Nepal treaty of 1950.  The issue of citizenship is described in Part 2 and the conditions in article 12 for citizenship by descent and Article 13 for citizenship by naturalization the same are discriminatory and not gender sensitive either. For citizenship by descent both parents have to be Nepalese. Considering the fact that the youth of Nepal go out in search of employment a lot of their children will face problems, because citizenship by naturalization is quite complicated. The current draft constitution is a job half-done.