Nepal’s Interim Draft Constitution-2063:A Solution Or A Problem?

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The Interim Draft Constitution-2063 has been made public. While reading between the lines of the constitution, it is quite clear that it is not a draft but a draft of the Interim Draft Constitution. Most probably, another draft committee will be required to give it final shape before its formal declaration.

Coordinator of the Constitution Draft Committee (CDC) Laxman Aryal, immediately after his appointment, had said that he would not even require the 15 days allocated to him. He said 14 days would be enough to complete the job. This showed his lack of vision and understanding about the complexity of framing an interim constitution, given the difficult political situation Nepal is in. After an additional 44 days (altogether 68 days) of intensive homework, the CDC came up with a 75-page Interim Draft Constitution that is full of ‘fill in the blanks’ and ‘multiple choices’. Was that the kind of job expected of the CDC? Or, were the Nepali people expecting such a problematic interim constitution after more than two months of exercise?

The Interim Draft Constitution is divided into 26 parts. Part I of the constitution has failed to determine the core issue of the political model to be exercised during the interim period even though the declaration by the Parliament has given a clear direction regarding this. For this, the CDC has suggested four different options – provincial federal republic, federal republic, socialist republic-oriented and republic-oriented. The whole of Part II, which is related to citizenship, is placed as ‘discussed but final decision not made’. The Formation of Legislature (Part VII) is left blank. The eligibility of the voter is mentioned as 16/18 years (Part VIII).

Under Local Autonomous Governance (Part XVIII), two options are given. The SPAM (Seven Party Alliance and Maoists) could either choose the SPA version of local autonomous government or the Maoist version of Autonomous Republic.

At a time when the Maoists are calling for reserving 50 per cent of the seats for females in all the state structures, the interim constitution has given only one option, which says 33 per cent of the seats in the structure of the political parties as well as candidates in the election to the constituent assembly should comprise women.

Provision about the military is mentioned in Part XXI. Clearly there are two options for the parties to choose – the SPA or Maoist version. The second, or the Maoist version, proposes establishing two armies (Nepal Army and Maoist Army), and the issue is to be settled only after the election of the constituent assembly. The second version also has provision for a military commission instead of a National Security Council in line with the concept prevailing in the communist states. Under this version, with the consent of both the sides (SPA and the Maoists), militias will be formed and be mobilised by the Prime Minister.

Two options are given for the appointment of the head of the constitutional bodies. Either a Constitutional Council will be formed or authority will be given to the council of ministers.

Transformational provision (Part XXIV) provides two options about the King’s fate. The first option states that the King’s fate should be decided through a referendum, while the second option recommends abolishing the King now and regarding the head of the legislature as head of state for the interim period. The SPA has so far gone for the first option.

Who will declare the interim constitution? Tick either House of Representatives or Political Assembly. The simple task of filling up the relevant clauses or sub clauses in various places are also left blank for the readers to fill.

Neither the SPA nor the Maoists are satisfied with the outcome. Some blamed the CDC while others blamed the SPA and the Maoists (SPA -) for failing to reach a political consensus required to prepare the interim draft constitution. Another issue is whether the CDC should have been allowed to escape by submitting an incomplete job. Perhaps, the committee should have waited some more time and tried to bring the SPAM into consensus. Other political parties, civil society and the people in general also do not seem happy with the draft.

The CDC team was composed basically of lawyers representing the Seven Party Alliance, the Maoists (SPAM) and other quarters of life. All members need not have been lawyers in the team. Rather one senior political leader from each of the political parties could have gathered to do some brainstorming to give a political decision on behalf of their respective parties.

Another criticism has been about the working style of the CDC. The CDC sought suggestions from SPAM towards the end while submitting the Interim Draft Constitution. All the eight political parties gave their party’s stand to the CDC. The CDC, instead of organising an all-party round table conference to hold a debate and resolve outstanding differences, chose to come out with all of their suggestions in the form of multiple choices and blanks. It only proves that the CDC wanted to be a good boy without angering any side.

Sambhu Thapa, one of the members of the CDC, said that ‘… the interim constitution may fail and … the constituent assembly could be a ‘bridge too far’. Another member of the CDC Harihar Dahal said that ‘the draft is a collection of ‘disagreements’. (The Rising Nepal, Aug 27, 2006). Both Maoists and SPA are not happy with the incomplete interim constitution. In sum, it seems that the biggest rift lay between the SPA and the Maoists on whether to abolish the monarchy through an interim constitution or decide on its fate through a referendum. The question that arises in everybody’s mind now is – will the interim draft constitution carry SPAM together to the election of the constituent assembly?