The other milestone was the Comprehensive Peace Agreement (CPA) between the interim government of Nepal and the Maoists, concluded in November 2006.[break]
The CPA formally ended the Maoist armed conflict by terminating military action and arm mobilization by both Maoists and the government; keeping combatants into cantonment; calling both parties for commitment to uphold human rights, all international human rights laws, civil liberties; and made several other provisions for implementation, including monitoring of the management of arms and armed personnel of the Nepal Army and the Maoists.
This followed the all-party government with the participation of the Maoists in the Cabinet which paved the road for the Constituent Assembly (CA) election.
The CA election was held on April 10, 2008 after two failed attempts. The election gave victory to the Maoist as the largest party in the CA.
The 601-member CA started its official business on May 28, 2008 with the mandate of drafting a democratic and inclusive Constitution for Nepal within the stipulated time period of two years.
As the CA failed to produce the new Constitution within the stipulated time, amid much controversy and chaos, on May 28, 2010, the CA passed the 8th Amendment Bill to the Interim Constitution to extend tenure of the CA by one year with a two-third majority.
The Bill amended Article 64 of the Interim Constitution, replacing the existing term of “two years” with “three years.” The terms of CA has been extended for four times as of now.
The recent 11th amendment bill to the Interim Constitution has extended the terms of CA for another six months.
Working pattern
The CA works through the following ten thematic committees, which have individual terms of references but follow the same working procedures: committee on fundamental rights and directive principles; committee on protection of rights of minority and marginalized communities; committee on judicial system; committee on determination of structure of constitutional bodies; committee on determination of bases for cultural and social solidarity; committee on the preservation of national interests; committee on the determination of the form of legislative organ; committee on allocation of natural resources, financial powers and revenues; committee on determination of the form of government, and committee on state restructuring and distribution of state powers.
The Constitutional Committee (CC) is entrusted with preparing a single draft of the Constitution by incorporating all the 10 reports prepared by the thematic committees and the reports to be prepared by itself.
The missing part on the sides of all thematic committees and constitutional committee is that no committee has yet realized to form the technical committee to receive technical assistance for drafting the text of Constitution.
Recent progress
The three major political parties – UCPN (Maoist), Nepali Congress (NC), and CPN-UML –along with Samyukta Loktantrik Madhesi Morcha (SLMM), have forged consensus to form the State Restructuring Commission. Earlier on Nov 1, 2011, a 7-point agreement was signed amongst the senior political leaders.
Point No. 7 was relating to constitution making that provides: a) Dialogue among political parties will continue to assist the peace building and constitution drafting processes.
A high level political mechanism will be formed in this regard. b) Work related to constitution drafting will be accelerated.
The CA will form a panel of experts to take suggestions on the issue of state restructuring. Work for the preparation of a draft constitution will begin in one month.
c) Process for formation of a national consensus government will begin once peace building and constitution drafting processes pick momentum.
Likewise, the CA has adopted the new operation calendar of events for drafting the constitution in the next six months.
As per the calendar, all the remaining disputes with regard to the constitution except for the issue of state restructuring will be resolved by December 30. The CC will hold deliberations on the subcommittee’s proposal and will endorse it by January 4, 2012.
In case the CC fails to settle any contentious issue, it will be forwarded to the plenary assembly for decision through voting.
The CC will prepare the first integrated draft, excluding the issue related to the state restructuring, from January 10 to January 29. The draft will be discussed at the plenary session, get endorsed and published in gazettes by March 5.
The three-week period of time has been allocated for publicity of the draft and collection of feedbacks from the people.
The CC has been given a week until April 19 for making amendments to the first draft. Finally, the CA chairman will authenticate the bill and submit it to the President for promulgation by May 27.
Major contentious issues yet to be resolved
The key issues in the current debate of constitution writing relate to the forms of government, the electoral systems, federal states, preferential rights, the judicial system and arrangements for the transitional period after the promulgation of the new constitution.
Form of government: The Maoists favor a directly elected President heading an all-party government with a single chamber of Parliament.
The NC/UML favor a parliamentary system led by a prime minister with a president indirectly elected by a bicameral parliament and provincial assemblies. The CA Committee on Forms of Governance was the only committee which submitted three different proposals.
Electoral system: The CA committee on Forms of Governance submitted two proposals. The UCPN M proposed a multiple-member, proportional, direct electoral system based on proportional inclusion, to be determined on the basis of the population, geography and social economic factors.
The NC and CPN UML proposed a mixed system, with half the members of Parliament elected directly on FPTP and half elected proportionally (similar to the system applied in the CA elections).
Issues related to State Restructuring: The crucial questions relate to how many provinces should a federal Nepal have, how the boundaries of these provinces should be delineated, and how they should be named.
The issue of whether a high-level State Restructuring Commission recently formed will be able to work in time and will its report be useful to resolve the problems revolving around the issue.
Political Preferential Rights: The proposal of the state restructuring committee to entitle the dominant ethnic group in each ethnic province to have a member of their community as the chief executive of the province for at least two terms is an issue where there is considerable disagreement.
Right to Self-Determination: The issue of whether to recognize the right to self determination of the ethnic, indigenous and Madheshi people in the Constitution is contested.
However, there is a general agreement among all political parties in the CA and the leaders from the Madheshi and ethnic communities that the right to self determination does not include the right to secession.
Private property: Matters related to the limitations on the right and whether or not to fix ceiling on land ownership; if the ceiling is fixed, whether the state should pay compensation for the land that is beyond the ceiling.
Proportionality: Guarantees of proportionality for ethnicities/castes, regions, and genders figure in the preamble as well as in provisions addressing fundamental and minority rights, political structures and the electoral system.
The reach of these principles is uncertain. Other issues, such as the formation of Truth and Reconciliation Commission and Commission on Disappeared Persons are yet to be materialized. Likewise, properties confiscated by Maoists have not been fully returned.
Non-compliance of rule of law
Serious problem related to the political actors in regard to the completion of the task of constitution writing is much related to non-compliance of rule of law.
There are solid reasons as to why our state actors have time and again failed to address the problem in time and take the country forward by giving the new Constitution. We have some agreements, most importantly the CPA and the interim constitution.
These documents have established a framework for constitutional and political changes and enshrined the guiding principles in the forms of preamble and directive principles agreed in earlier negotiations.
Political actors should understand that without recognizing the rule of law and without sufficient respect for the rule of law, no dispute can be settled. We should know that Nepal is not just a democracy but a constitutional democracy.
The country will be able to take the Peace Process to a logical end and promulgate a new Constitution within the extended mandate of the CA if the political actors show total sincerity to the rule of law and past commitments.
Rule of law requires some procedural guarantee for ensuring the people that it is substantially correct. To do so, the rule of law should go under a procedural criteria whereby it is judged whether it is just, fair and reasonable or not.
Rule of law not only requires the procedural values to be effective in society, but also needs some institutions to ensure their implementation. Such institutions are also of values for the rule of law which directly or indirectly influence its operation and function.
Another aspect of the rule of law implies that laws should not only be legal but also be legitimate. It may fulfill all the formal and procedural criteria but it does not exist if it lacks the support of the citizenry whom it affects. In this relation, Huntington says, “legitimacy is a mushy concept that political analysts do well to avoid.”
In our case, in particular, writing the Constitution and managing peace, it can be suggested that the notion of rule of law should not be limited merely as a slogan to political actors.
It has to be fully complied in reality. And the compliance of rule of law in this particular juncture is to respect the court’s order, the interim constitution and past agreements concluded among the various political and state actors.
Acharya is a constitutional expert and an outspoken critic of federalism in Nepal.
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