Nepal's Interim Constitution: Its Features &Flaws

After the 16-hour-marathum discussion on the draft interim constitution, early in the Saturday morning of Dec. 16, 2006, the leaders of the Seven-Party Alliance (SPA) and the Chairman of the Communist Party of Nepal-Maoist (CPN-Maoist) signed on it making the Shah King inept.

Nepalis have a new Constitution, a new national anthem, and a new “coat of arms” in other word “emblem” or “insignia” or “logo”. Millions of Nepalis previously deprived of citizenship will have citizenship. Nepal is heading to nationhood rewriting very ground rules anew. Nepalis are making themselves citizens rather than the subjects of a king.

The current House of Representatives will give a life to the Interim Constitution, and then takes its own life paving the way for giving birth to a new legislature of 330 members, and then the new legislature will form an interim government that will hold an election for a constitution assembly of 425 members for crafting a new Nepal’s constitution.

It is time for King Gyanendra and his family to checkout of the palace as he has been relieved from the state affairs. The incoming interim government might ask the rent for using the palace that belongs to the people after the Interim constitution comes to effect. The palace is no more the property of the king inherited from his predecessor. Soon, his family and he will lose the stipend they have been receiving for doing nothing but exploiting the people.

The Interim Constitution of Nepal is a historical document as it has institutionalized inclusive democracy by ending the monarchy, and established the principles of rights to education, health and employment. Some political parties wanted to make these rights as the fundamental human rights but the large parties such as Nepali Congress did not agree with them. However, the interim constitution opened the doors to an election for a constitutional assembly. Constitutional experts pointed out some weak points of the interim constitution. However, it should be promulgated at the earliest to end the political mess prevailing in the country.

Convener of the interim constitution drafting committee, Laxman Prasad Aryal said that the constitution has made the Nepalese people sovereign in the real sense of the word turning over the king's power to reign to the Prime Minister. He made it clear that from then on any citizen can be the head of state. Talking to journalists, Mr. Aryal said, “Of course the nation is now hurtling toward a republican set-up. But we have yet to see whether it will be “people’s republic” or “democratic republic”. He appreciated the SPA and the CPN-Maoist leadership for agreeing on the draft interim constitution. [1]

Vice President of Nepal Sadbhavana Party-Anandidevi, Bharat Vimal Yadav said though the constitution has made the people sovereign, has a provision for any citizen to be the head of state, and has guaranteed the fundamental rights and followed the principles of proportional representation, his party demands the restructuring of the state following a federal system and elections for constituencies based on the population.

Member of Parliament Radheshyam Adhikari said the weak points of the constitution are the provisions for making a single person the head of state and the Prime Minister, for presenting an annual report of the Supreme Court to the parliament through the Prime Minister and for avoiding the reality of an opposition party.

Nepali Congress (NC) General Secretary Ram Chandra Poudel said that the political parties would continue the practice of reaching a consensus on any matter of national importance as they did in the case of the interim constitution. “It is a document of consensus that will promote a new democratic culture for peace and democracy,” said Poudel.

Member of the peace-talks team of the CPN-Maoist, Dev Gurung said the interim constitution was a remarkable achievement that paved the way for a constituent assembly. The agreement has drawn a clear picture of the democratic future of the nation, he said. However, Gurung said that if the formation of an interim government was delayed then it would let the reactionary forces to hatch conspiracy against the new constitution.

Member of the peace-talks team of the government and Minister of State for Labor and Transport, Ramesh Lekhak said that the interim constitution has incorporated almost every ‘major and minor’ issue raised by all the political parties. He said, “It has eventually incorporated the concepts of competitive and multi-party politics into a system. In essence, it will set the nation to positive direction toward establishing peace.”

Chairman of the Nepal Peasants and Workers Party, Narayan Man Bijukchhe said, “We wanted it to be a radical document. We tried to put education, health and employment as the fundamental rights of citizens, but couldn’t.” He said that the SPA leaders had given assurance to bring laws on enhancing public access to health, education and employment. “We will take the issues of land reform and tenancy rights to the public,” he added.

General Secretary of Left Front, C. P. Mainali said that it had institutionalized the achievements of Janandolan- II (People’s Movement in April 2006) through the wider political consensus. “As it is a common document, all should toast victory on it”.

Coordinator of the Interim Constitution Draft Commission, Laxman Aryal said that it has made the provision for taking human rights as the guiding principle of the state. Aryal also hailed the provision of 33 per cent reservation for women in the parliament.

An industrialist, Rajendra Khetan said, “We want an immediate end to the transition period.” He stressed the need for the political parties to reach a consensus on the economic sector too as they did in the political sector. “We are convinced that the business community will not have to grapple with any threats or fear as the interim document has not given priority to the nationalization of private property,” he added. He said that the agreement on the constitution had further consolidated the understanding between the SPA and the Maoists. [2]

Addressing the inaugural session of the second national convention of Tamang Mukti Morcha at Tudhikhel, Kathmandu, Maoist Politburo Member, Dev Gurung said that the conservative and orthodox leaders of the parliamentary parties, still sticking to the Constitution of 1990 and the constitutional monarchy, have delayed the enactment of the interim constitution. "The government should immediately implement the interim constitution and initiate to form an interim government which should announce the date for an election for a constituent assembly, and the government should be held responsible for the delayed-peace deal,” he said. Only the implementation of the interim constitution and formation of an interim legislature can reinstate the people's sovereignty, he said, "Further delay may boost the monarchy and reactionary forces to raise their heads." He criticized the government for recruiting soldiers, re-establishing police posts, making appointments of the ambassadors and transferring the government employees. "It looks like the current government does not understand a peaceful language and that is why we have served an ultimatum of Dec. 30 for correcting all wrong decisions made by the government," he said. However, he is optimistic that the country will be a federal state with regional autonomy and it would guarantee the right of the indigenous people to self-determination. "Nepali people emerged victorious in the peaceful and armed struggles and we are now legitimizing the interim constitution, which will ensure people's freedom," he said. [3]

On Wednesday, Dec. 20, 2006, speaking at a press conference held in Kathmandu, President of Rastriya Prajatantra Party (RPP), Pashupati Shumsher JB Rana said that the announcement of the interim constitution by the SPA and the CPN-Maoist ignoring his third largest political party that had won 13 per cent votes in the past elections was undermining not only the RPP but also the parliament. The interim constitution should be a document of common consensus but it has not been even inclusive. So, the RPP has fundamental concerns over it. The provision made in the interim constitution for including only the seven-parties and the Maoists in forming the local bodies was also an authoritarian attitude and undemocratic act, and was disregard to the RPP, one of the constituents of the people's movement, he said. He however said that his party would provide full support to the Government in the election for a constituent assembly. [4]

Talking to reporters, Senior Leader of the Communist Party of Nepal-Unified Marxist and Leninist (CPN-UML), Bharat Mohan Adhikari said, "The interim constitution is another big leap in the political history of Nepal. With this, the country is about to enter into a new political direction." Convener of the Maoist-talks team, Krishna Bahadur Mahara described the interim constitution as a major achievement of the historic people's movement; and it has made the election for a constituent assembly a reality. Senior Nepali Congress leader, Arjun Narsingh KC opined that the interim constitution is an outcome of political agreements reached between the SPA and the Maoists on November 08 and Nov 21, 2006. He further said, "The interim constitution has effectively shifted all the privileges of the King to the Prime Minister. The King is totally powerless now." Similarly, Vice-chairman of People’s Front Nepal, Lilamani Pokhrel said that reaching consensus on the interim constitution the parties "have made another attempt to a new political leap". He said, "Now the position of the monarchy is as good as suspended." The rights to education, healthcare and employment have been included under the state's directive principles but these rights will become fundamental rights after formulating a separate law. [5]

The interim constitution signed by the SPA and the CPN-Maoist has no provision for removal of the Prime Minister from office, and for a checks-and-balance system. The interim constitution makes the Prime Minister almost supreme having power to influence the entire state mechanism. The Prime Minister makes appointments to constitutional bodies on the recommendation of the Constitutional Council headed by the Prime Minister. The Constitutional Council will have no control on the Prime Minister as almost half of the members of the council the Prime Minister appoints and others are ex-officio members such as Chief Justice, and Speaker of the House of Representatives. However, the SPA leaders defend the interim constitution. "It is an interim period and we are going to practice a politics of consensus," said Ram Chandra Poudel, General Secretary of the Nepali Congress, "So, there is no question of the Prime Minister becoming a dictator." Poudel defended that there will be no ruling and opposition parties in the legislature, and the members in the Constitutional Council represent different parties, giving enough space for checks and balance. "We did not even include the provision for removing the Prime Minister as we know we should run the government by mutual understanding and consensus until the constituent assembly writes a new constitution," he added. [6]

Political commentator and columnist, CK. Lal told Xinhua on Saturday, Dec. 16, 2006 that the agreement on the interim constitution has led the political process a step forward and helped to ease the growing crisis of confidence between the SPA and the CPN-Maoist. “Although the latest agreement is one step ahead in the ongoing political process, there could be complications if the agreement is not implemented honestly,” said Lal. "So, both the sides must be honest to implement the agreement if they want to hold the CA election in time," he added. "However, the latest agreement has helped the CPN-Maoist to remove its suspicion about the government's position on CA election," said Lok Raj Baral, political scientist. Baral also stressed the need for unity among the eight political parties to end the ongoing political process in a definite destination. [7]

Nepal's major political parties and the Maoists on Saturday reached a consensus on the interim constitution. "The Prime Minister, as the chief of executive, would exercise all the authority vested in the head of state. It means that the king is suspended till his fate is decided by the first meeting of the constituent assembly," said Ishwor Pokharel, leader of the CPN-UML. It was believed that the interim constitution would not be signed on Dec. 16 as King Mahendra, father of the current king sacked the first popularly elected government of BP Koirala in 1960 and started a dictatorial rule on this day. So, Nepalis considered it a 'Black Day' in the history of Nepal. [8]

The king had already been stripped of most of his powers earlier this year after violent street protests forced him to give up absolute rule and restore multi-party democracy. Yuvaraj Ghimire opined that the decision on transferring all executive powers to the Prime Minister does not alter the king's position but has satisfied the rebels, who have been insisting that the king should not be given any authority while a transitional government is in place. Yuvaraj Ghimire said, "The king was not exercising any power for the last six months. He was not given any power so it puts him in the same position as was continuing for the last six months." [9]

On Dec. 22, 2006, Chairman of the organization of Newar community called 'Newa Deya Dabbu', Malla K. Sundar in a statement has said that the interim constitution of 2006 recently adopted by the Government of Nepal has caused frustration and discontent among the indigenous communities including the Newar as it has failed to address the issues of state restructuring, inclusive democracy, democratic republic and communal autonomy even though it has mentioned the restructuring of the state at the policy level, but it has not designed to make Nepal a democratic republic giving autonomy to various communities pursuant to the aspirations of Nepalis. "Maintaining the decentralized structure of local bodies under the state control like in the past and the provision made in the interim constitution for promoting centralized state control over their revenues and other areas of their authorities quite contradicts the principle of the communal autonomy," says the statement. Chairman Malla also hinted at the flaws in the interim constitution saying that it is doubtful that the proportional representation of all ethnic communities including the Newar community will be guaranteed in the upcoming polls for a Constituent Assembly as the same old 205 constituencies are adopted for electing representatives. The Newar organization has strongly demanded to correct the flaws in and shortcomings of the interim constitution before it is endorsed by the cabinet and the parliament. It also warned of staging another agitation of the indigenous communities if their concerns are not addressed. [10]

On Dec. 23, 2006, at the event held on the occasion of the 51st anniversary of the Nepal Bar Association in Janakpurdham, lawyers said the proposed interim constitution has centralized authority by concentrating power only on the Supreme Court of Nepal undermining the Appellate and District Courts. Lawyers have accused the drafters of the interim constitution of not seriously thinking about the gravity of the judiciary. They said the interim constitution has curtailed the authority of the Appellate and District Courts, and even charged the drafters of the interim constitution of failing in thinking about the excessive pressure of lawsuit cases in the Supreme Court, in view of the number of judges it has. [11]

The Interim Constitution of Nepal of 2006 has 26 parts, 167 sections and 2 annexes

The preamble of the Interim Constitution states that in view of the people's aspirations for democracy, peace and progress expressed through various historical struggles and movements since and before 1951, serious efforts are made to progressively restructure the state for the resolution of the problems of class, ethnic, regional, and gender prevalent in the country.

The interim constitution is for a competitive multiparty democratic system, people's liberty, fundamental rights, human rights, adult franchise, periodic elections, complete freedom of press, independent judiciary, rule of law and democratic principles.

Signatories declare that the Interim Constitution of Nepal of 2006 has focused on democracy, peace, prosperity, progressive socio-economic transformation and sovereignty of the country, integrity, independence and dignity to institutionalize the results of the struggles and revolutions launched by the people until then.

Highlights of the Interim Constitution of Nepal of 2006 are:

• Sovereignty with the people;

• Formation of an interim unicameral legislation of 330 members

• Prime Minister is to call and conclude parliament sessions, and to present annual programs and policy of the government;

• Executive power vested in Council of Ministers;

• Election for a Constituent Assembly of 425 members;

• Two-year tenure for the Constituent Assembly from the date of its first session;

• A Constituent Assembly Court for settling the disputes and complaints about the election for a constituent assembly;

• National Human Rights Commission to be upgraded as a constitutional body;

• Formation of interim local governments such as district development committees, municipalities and village development committees on the understanding of the SPA and the CPN-Maoist;

• Requirement of at least 10, 000 voters' signature for forming a new political party and participating in an election;

• Council of Minister to appoint Chief of Army Staff;

• Amendment to the Constitution only by two-third majority of parliamentarians;

• Provision for Referendum on any issue of national importance;

• Prime Minister to wield all executive powers of the Head of State;

• Decision on the monarchy by the first session of the Constituent Assembly;

• Transfer of the property of late King Birendra, late Queen Aishwarya and their relatives to a Trust Fund managed by the Government of Nepal for the nation's betterment;

• Nationalization of the property inherited by Gyanendra as a king;

• Fresh oath of office to be taken by justices of Supreme Court, Appellate Courts, and District Courts;

• The current House of Representatives and National Assembly will automatically be dissolved with the promulgation of the interim constitution;

• The Constitution of the Kingdom of Nepal of 1990 will be annulled after the promulgation of the interim constitution.

The Interim constitution signed by the SPA leaders and the Chairman of the CPN-Maoist is the sixth Constitution of Nepal. The first constitution was introduced by hereditary Prime Minister Padma Shumsher Jung Bahadur Rana in 1948 to consolidate the rule of his clan. The second constitution was an interim constitution declared by King Tribhuvan in 1951 after the fall of the Rana regime. The third was a democratic constitution promulgated by King Mahendra in 1958. The fourth constitution was the Panchayat Constitution of 1962 promulgated by King Mahendra to consolidate the king’s rule disbanding political parties and introducing a party-less political system called Panchayat. The fifth was the Constitution of 1990 promulgated by King Birendra after the people’s movement against his regime and the Panchayat system.

The promulgation of the Interim Constitution will most probably be the ultimate step to crafting a people’s constitution by the Constituent Assembly. Thereafter, Nepalis will be the ultimate decisions makers. This will put an end to all sorts of family rules.

Footnotes:

[1] Nepalnews.com pb Dec 17, 2006, “Nation moving towards republic set up: Aryal”

[2] The Rising Nepal, Dec. 17, 2006, “Interim Constitution widely hailed”

[3] The Himalayan Times, Dec. 23, 2006, “Govt. Blamed for Delay in Interim Statute Promulgation”

[4] The Rising Nepal, Dec. 21, 2006, “Rana criticizes attempt to bypass RPP”

[5] Nepalnews.com mk Dec 16, 2006, “Interim constitution a historic step forward, say leaders”

[6] Ekantipur.com, Dec. 16, 2006, “Interim statute makes PM all powerful by Yuvraj Acharya

[7] People’s Daily Online, Dec. 16, 2006, “Another milestone in Nepal's peace process”, Source: Xinhua

[8] Islamic Republic News Agency, Dec. 17, 2006, “Prime Minister Interim Head of State, king suspended in Nepal”

[9] VOA News Online, Dec. 16, 2006, “Nepalese Government, Rebels Agree on Temporary Constitution” By Anjana Pasricha New Delhi

[10] The Rising Nepal, Dec. 23, 2006, “Newar community not happy with interim constitution”

[11] The Rising Nepal, Dec. 24, 2006, “Judiciary undermined by interim constitution”

Please visit www.kathmandumetro.com and www.SiddhiRanjitkar.com; write to Siddhi@SiddhiRanjitkar.com

© Scoop Media