Nepal & Bhutan Brief (18/15)
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Nepal gets its 7th Constitution:

1. Nepal’s decade-long wait for a new constitution through people’s representatives ended on September 20, 2015 as President Ram Baran Yadav announced the commencement of new constitution during the Constituent Assembly meeting-cum-special function organized at the CA’s regular meeting venue. CA Chairman Subas Chandra Nembang requested President Yadav to sign the designated page to proclaim the new constitution. Yadav bowed his head to each of the five copies before signing them. He then read out the text: “I announce, before Nepali people, that the Nepal’s constitution endorsed by CA, authenticated by CA Chairman and presented here, has commenced today-20 September, 2015.” Nepal has got its 7th Constitution.

2. President Yadav in his speech said that endorsed by people’s representatives, this constitution was the document for our common commitment for protecting freedom, geographic integrity, independence and sovereignty vested in people. The packed House of the CA applauded the President’s address by thumping the table. “With the announcement of commencement of this constitution federal democratic republican system has been institutionalised in our country. It has been established that only the people are the source of sovereignty vested in Nepali people and the state power,” Yadav said. The CA unanimously endorsed a vote of thanks to President Yadav for his announcement and address. Nembang said that the new constitution might still have its weaknesses and it might not be perfect but it had provided a foundation to amend in through democratic process.

Salient Feature of the Constitution:

3. The new constitution that has 35 chapters, 308 articles and 9 schedules, contains the following important provisions/features:-

  • It has been proclaimed in the name of people of Nepal and establishes a Republican Parliamentary set-up with federal structure as fundamental principles.
  • It provides for the formation of seven provinces under the federal model.
  • Prime Minister will to be elected by party/alliance having majority; by two or more parties forging majority with mandatory provision of seeking vote of confidence within one month.
  • In case of failure to win the trust-vote, the President could dissolve the House of Representatives within six months and fresh elections. PM does not have right to dissolve House of Representatives
  • Provision of not allowing no- confidence motion against a PM for two years.
  • Ensuring inclusion through mixed election system and provision of reservations for underprivileged groups in state bodies.
  • Flexible constitution with minimum non-amendable provisions.
  • Ensuring secularism with protection for all religions.
  • President and vice president to be from different gender or community.
  • Speaker or Deputy Speaker to be a woman and the two posts be held by two different parties.
  • Inclusive cabinet with maximum strength of 25 members.
  • Creation of separate commissions on national resources and finance, Women, Madhesis, Dalits, Tharus, Muslims and indigenous nationalities.
  • All languages spoken in Nepal as national languages: a province can make its dominant language as its official language, instead of Nepali language.
  • List of separate rights for centre, provinces and local bodies.
  • Flexible provisions on citizenship: Citizenship, recognizing three genders, and in the name of father or mother, NRNs to get citizenship certificate, provision of retrieving citizenship if former Nepali citizen returns to Nepal and lives for five years.
  • Right to employment with provision of unemployment allowance.
  • Separate fundamental rights: Right to health, right to food, right to housing, right to women, right to children, rights of Dalits, right of senior citizens, consumer rights, right to social security, right to social justice.
  • Judiciary:

    • Independence of judiciary is enshrined in the constitution. Although Judiciary has been one of the areas not completely transformed, some fundamental provisions have been changed.
    • The three tier court system remains untouched, however the provision of a constitutional bench within the Supreme Court is a major provision introduced in the new constitution. By adopting this provision, Nepali judiciary can take a step forwards reducing its criticism.
    • Disputes between centre and provincial governments, between provincial and local governments and election disputes regarding members of Parliament and provisional assemblies will be under the jurisdiction of the constitutional bench.
    • An important change is the provision of high court and its jurisdiction. All kinds of writ petitions shall be heard by the high court,
    • Another important change in the judicial system is the fact that no ad hoc judges shall be placed in the Supreme Court and the High Court.
    • District courts may hear appeals to those cases that are disposed by quasi-judicial bodies, which is another fundamental change considering the judicial history.
    • There is also fundamental change in the impeachment procedure. According to Interim Constitution, 25 per cent law makers could register a motion of impeachment against Supreme Court Judges and Parliament could proceed with impeachment procedure. However, the new constitution seeks to set up a permanent standing committee of the parliament to look into impeachment cases. The committee, consisting of 11 members, may independently initiate the impeachment process.
    • Background and Analysis:

      4. Managing the Maoist combatants and delivering a new constitution were the two major objectives of the peace process that began in 2005. The first objective was fulfilled in 2013 with management of combatants and second has now been fulfilled with the adoption of the new constitution on September 20, 2015. With these, the nearly decade long transition processes in the country have come to an end.

      5. Presence of over 89 % of 598 Constituent Assembly members in the final voting and the overall support of 85 % members to endorse the new constitution from an elected body has granted due legitimacy to the constitution even though 59 Madhes-based CA members boycotted the final leg of CA’s proceedings due to discontent on boundaries of federal units, and for not addressing their other concerns.

      6. The first CA had failed to deliver new constitution and had to be dissolved after four years. In that CA the Unified CPN-Maoist and Madhes-based parties that emerged as the leading political groups and were thus in a dominant position vis-à-vis the NC and CPN-UML. However this changed dramatically in the second CA election of November 2013 wherein the latter (NC &UML) emerged as the top two parties. These two in combination with the Maoists and other allies, managed to achieve what the Maoists and the Madhesies could not do in the first CA’s tenure.

      Constituent Assembly Converts into Parliament:

      After the promulgation of the new constitution, CA Chairman Nembang informed the House that the CA stands transformed to Parliament as per the new constitution.

      Protests and Violence:

      7. The final phase of the constitution drafting process and the post-promulgation phase have been marred by violent protests and casualties in different parts of the country. The provision of seven provinces and their demarcations have failed to satisfy of Madhesis and Tharus in the southern plains. Indigenous and ethnic communities from the hills are also discontented. Trust deficit between political parties seems not to subside. The polarization seems to have deepened with all Madhes-based parties keeping out of the CA process, including Bijaya Gachhadar’s Madhesi Janadhikar Forum – Loktantrik that had earlier supported the 16-point agreement that helped expedite the stalled constitution drafting process. Leaders associated with United Democratic Front were getting overwhelming support to their agitation against the new constitution and they were ready to intensity their efforts. Burning copies of the new constitution, taking on the security personnel, police firing shots in Jhapa, Morang, Sarlahi, Rauthat, Bara and Banke continued. UDMF leaders vandalized and torched the houses of CA members and NC leaders. Tensions ran high at several places in the Tarai belt leading to imposition of curfew in many areas. In Kailali, unidentified persons exploded a liquefied bomb, one protester was killed in police firing in Birgung, A cylinder bomb went off at Lamhi-based Area Police office, and number of Madhesi cadres was injured in the clash with police in Biratnagar. The official figure places 40 people and over 200 injured in the clashes between police and protestors. However, according to the locals and the media, the numbers were much higher. Earlier, on September 14, two bombs exploded at two different Churches in Jhapa district. These happened within less than 24 hours of the CA retaining the clause on secularism, rejecting an amendment to declare Nepal as a Hindu nation.

      8. Earlier, on September 15, Bihar’s BJP MPs including Kirti Azad, Birendra Kumar Choudhary, Ajay Nishad and Alok Ranjan, and MLA of Saharsa. from areas close to Nepal border urged the Indian government to do more to defuse the crisis in the neighbouring nation. Worried about the security and political implications of the Nepal unrest, Indian foreign minister Sushma Swaraj expressed concern on the spread of violence over the draft constitution and urged the government of Nepal to take into account their aspirations.

      9. India had been urging upon Nepali political forces to show flexibility so that all outstanding issues were addressed through dialogue and widest possible agreement, in an atmosphere free from violence. This was also reflected in a statement issued by the Ministry of External Affairs on September 15 stating that India was concerned about the ongoing protests and strife in several parts of Nepal. Indian Foreign Secretary of India S Jaishankar visited Kathmandu, on Sept 18, as special envoy of the Indian Prime Minister to reiterate PM Modi’s old message of widest possible agreement on Nepal’s new constitution. He met CPN-UML Chairman KP Sharma Oli, Prime Minister Shushil Koirala, leaders of Madhes-based parties and President Ram Baran Yadav who also tried to impress upon the leaders of the major three parties to put off the voting process and to hold dialogue with the disgruntled forces.

      10. A day after the Constituent Assembly started voting on the draft constitution, the office of the President, on September 14, released the letter that Dr. Ram Baran Yadav, had earlier written to the Constituent Assembly Chairman Subas Chandra Nembang asking him to bring all the stakeholders on board thereby indirectly suggesting to put off the voting process and to the extent possible, ensure that no group, community or region quit the constitution making process. He stressed on starting dialogue process within the CA in order to win the confidence of the disgruntled forces. Reacting to the Presidential advice, Constitution Drafting Committee Chairman Krisha Prasad Sitaula said that nobody was above constitution and he that did not want to believe that the President, who was elected by the CA, would have said so or tried to interfere in the decision of sovereign body. The President was also criticized by the leaders of major parties for not being in accordance with his ceremonial position.

      Post-Promulgation Developments:

      11. Following the promulgation of the new constitution, India on September 20, Indian Ministry of External Affairs in a statement complemented the people of Nepal but expressed concern over continued violence in several parts of the Tarai region. The statement noted that Indian Ambassador to Nepal Ranjit Rae had spoken to PM Koirala in this regard. “We are concerned that the situation in several parts of the country bordering India continues to be violent,” it added. The statement repeated India’s call to resolve all outstanding issues and differences through dialogue in an ambiance free from violence and intimidation.

      12. In contrast, China congratulated Nepal on the promulgation of new constitution. Chinese Foreign Ministry Spokesperson Hong Lei, in a positively worded statement said, “China sincerely congratulates Nepal on promulgating the new constitution. It hoped that Nepal will seize the opportunity to realize national unity, stability and development.” Responding to a question on dissatisfaction among minority groups on the constitution, spokesperson Lei hoped that differences would be resolved through dialogue. He added that all political parties in Nepal could bear in mind that the fundamental interests of their country and the people, address the differences through dialogue and consultation, realize enduring development of the country and bring happiness to the people.

      European Union also welcomed the promulgation of Nepal’s new constitution, describing it as a historic event marking the culmination of the Comprehensive Peace Agreement. Statement issued by the EU, said, “the conclusion of this long process should lay foundation for Nepal’s future political stability and economic development”. As regards the unrest in several parts of the country, which had led to the loss of lives, the EU expected all parties to come together to address the outstanding concerns of the Nepalese citizens in an atmosphere of dialogue and compromise.

      13. US President Barack Obama also congratulated Nepal on the promulgation of a democratic and inclusive constitution in Nepal. Speaking at a dinner reception in honour of the visiting world leaders attending the 70th Session of the United Nations General Assembly (UNGA) on September 29, 2015, Obama offered best wishes to Deputy Prime Minister Prakashman Singh. who is here to participate in the 70th session of the UNGA leading a Nepali delegation, for the promulgation of the constitution. However, earlier on September 14, the State Department had called for the new constitution to have broadest possible support and reflect fundamental rights such as gender equality and basic freedom. “We urge citizens to engage through peaceful, non-violent means, and call on Nepali security forces to exercise restraint in responding to protests.” the
      statement added.

      Net Assessment:

      14. Amidst continuing protests and demonstrations, the agitators also resorted to obstructing free flow of traffic on entry roads from India to Nepal. Supply of essential commodities including POL started affecting normal life. Hundreds of trucks and containers carrying essential items stand stranded at the Birgunj and other entry points. Government and anti-India elements have as expected, accused New Delhi of deliberate undeclared ‘economic blockade’. In politically orchestrated agitations in Kathmandu, effigies of PM Modi and Indian flags have been burnt and even office of a major Indian investment firm forced to shut down.

      15. A situation of virtual stand off seems to obtain with the Madhesies determined to, what they describe as ‘a fight for their legitimate aspirations’ and the government maintaining its ‘hard line approach’. Formal lines of communication between the two sides have snapped and no official dialogue is likely to start in the immediately. All eyes are on PM Modi’s return from his current tour of the US to help find a solution to the escalating crisis by facilitating the contending parties to climb down from their respective stated positions and resume efforts towards seeking a negotiated settlement. Nepalese Commerce Minister has rushed to Delhi for talks to resolve the issue of resumption of supply lines.

      16. Given the traditional ties of friendship between the two countries and the two peoples and the enormous capacity of the Nepali people to eventually resolve their differences in a peaceful manner, it is hoped that the present crisis will soon blow over. While the primary responsibility for a peaceful resolution of what is essentially a political dispute between the government in Kathmandu and a significant section of the people, lies with the ruling parties and the Madhesi leaders, the government of India could, to the extent possible, assist in the process to restore peace and amity in the country. For this to happen, it is important that violence is shunned by all and a process of constructive engagement is initiated.

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