The draft has now been presented to the full session of the CA for deliberation. With additional inputs, the 601 members of the CA, or at least the 542 supporting the draft, would take it to the people for their feedback. Out of the remaining 59 members, 35 oppose the draft as they think the document is not 'left' enough; while for 24 others, it is not 'right' enough. For the first lot, which wants an immediate naming and demarcation of future federal units, the draft constitution's provision of leaving this vital work to the Federal Commission is unacceptable, and therefore "regressive". For the second lot, federalism itself is wrong, as it wants the Hindu monarchy back or at least settled through a referendum.
Salvaging the first draft of the constitution from these two hostile extremes, supported by big opinion-makers domestically as well as internationally, is no less an achievement.Sadly, the critics of the draft constitution appear to miss the bigger picture and its positive elements. It goes a step ahead in preserving the gains of the 12-point agreement of 2005, Comprehensive Peace Agreement of 2006 and the Spring Revolution that followed. It institutionalizes the achievement of Madhesh Movement 2007 by guaranteeing federalism; and espouses the principles of inclusion of subsequent Janajati and Dalit uprisings. The four most important achievements of these movements—republican order, secular state, federalism, and inclusion—are guaranteed in the draft constitution. One-third representation of women has been enshrined.
The draft recognizes Nepal's social diversity and calls the country a secular, multi-ethnic, multi-lingual and inclusive republic. The authority to harness this diversity has been vested on state parliaments, which can decide what languages in the state should be recognized, in addition to Nepali, as the languages of government work and primary education.
Improved parliamentary democracy would be Nepal's political system, in which the ceremonial and emergency powers are vested on the president, who is elected by federal and state parliaments. The Prime Minister, elected by the federal parliament, will exercise executive powers. A mixed electoral system—60 percent directly elected and 40 percent elected on the basis of proportional representation—has been adopted for federal as well as state parliaments. This means, out of the 275 members of the federal parliament, 165 will be elected through single constituency first-past-the- post system, and remaining 110 through the List PR.
This method would apply also in election of state parliaments, which will have maximum 45 members. The Upper House of the federal parliament will also have 45 members, five each from eight state assemblies, and remaining five nominated by the President. The glass is obviously more than half-full.
The discord over the draft constitution is an extension of the past disagreements over the process as well as the substance of federalism and citizenship. In fact, disputing the process is a tactic deployed indiscriminately by all parties in the past to increase their leverage.
Let's take citizenship. The draft constitution proposes two ways to obtain Nepali citizenship: by descent and by naturalization, both already practiced in Nepal. The provision of citizenship by descent has been kept intact. Eligible citizens, i.e. at the age of sixteen years, can get citizenship by descent if both their parents are Nepali citizens, no matter by descent or by naturalization. The objection to this provision comes from civil rights groups who argue that this deprives women, who have children from foreign fathers, from passing citizenship by descent to their children. This criticism is invalid because a foreign man can get naturalized citizenship on the basis of marriage, and since the mother has a citizenship by descent, the children also get citizenship by descent if they have lived in Nepal. Broadened naturalization bracket has responded to the concerns of statelessness.
The draft, however, needs to be rectified to address the citizenship concerns of children of unidentified parents or single mothers. Also, the period of wait for a foreign man who has married a Nepali woman and intends to live here should be revised down to an acceptable level from the currently painful 15 years.
Then comes federalism, which definitely has more political weight. Here also, contrary to the clamor of disgruntled groups that attempts are underway to put off federalism forever, the draft ensures eight provinces in federal Nepal. In fact, the draft constitution takes the complex debate of federalism a step closer to solution by confirming the structure of state parliaments, as well as their rights and authorities. Boundaries of the states will be resolved by a Federal Commission in six months after it is set up, while the elected state assemblies will decide the names by two-thirds majority. In our highly divided political landscape, this is a pragmatic solution to ensure federalism.
Those criticizing this arrangement invoke Article 138 of the Interim Constitution, which mandates the CA to decide the name, number and boundaries of the provinces. The Supreme Court's recent single-bench stay order against the political parties—not against the CA as some tend to interpret—was based on the same provision of the Interim Constitution. Before this, there are at least two counts of precedents from full benches which order the CA not to stop constitution making process even 'for a single moment'.
The opposition to constitution making, either by stoking fears of 'delayed' federalism or by exaggerating citizenship worries, evinces a desire for procrastination. This is not acceptable. Dictating terms to the 90 percent CA majority equates to the classic case of the tail trying to wag the dog. But the four parties must also leave no stone unturned to regain the confidence of the dissenting groups. Timely amendments in the draft constitution would go a long way towards assuaging their concerns.
tikadhakal31@gmail.com
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