Subash Chandra Nembang led both the first and the second Constituent Assemblies as their Chair. It was under his watch that the second Constituent Assembly promulgated a new constitution on September 20th this year.
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Mahabir Paudyal, Thira L Bhusal and Balaram Pandey on Tuesday caught up with the veteran politician who is now back to CPN-UML. What were the kinds of pressures that came to bear on him in the final few days leading up to September 20th? And why has the constitution met with resistance from the day of its promulgation?
Could you share with us your experience as someone guiding the constitutional process in its final leg?When the new constitution was endorsed on September 17th, it marked the culmination of the old Nepali dream of a constitution through people's chosen representatives. We ratified the constitution through the Constituent Assembly on September 20th. But there was uncertainty until the last few days. 'Are we really going to get a constitution this time?' You media people would ask me. But then it was endorsed by CA and I certified it. Then the date and time for promulgation was fixed. On September 20, the President arrived at the Constituent Assembly 45 minutes behind schedule. There were various speculations. Will constitution be deferred again, people asked? But then the President arrived and the constitution was finally promulgated. Only then did people believe the country finally had a constitution. They spontaneously celebrated the new charter. This explains the level of uncertainty.
If you remember, I had warned that if we delayed constitution any longer, we might not get constitution through CA. Looking back, if we had delayed it even by a day or two, we probably would not have had a constitution.
What makes you say so?
Look at the events that unfolded after the constitution was announced. If we had failed to promulgate the constitution, the situation today would be worse. It would have been the biggest historical blunder. Now we have the constitution with which we can move forward. Without it, we would be in a complete mess.
Many attribute the current turmoil to the hasty promulgation of new constitution. Wouldn't it have made sense to delay it a little longer?
Like I said, if we had delayed it, the prospect of constitution was slim. Today we at least have a ground to stand on. Without statute we would have nothing. With the constitution in hand, we can discuss ways to resolve disputes and discontents surfacing in various parts of the country.
Also look into the percentage of lawmakers opposing it. The overwhelming majority of CA endorsed the constitution. Let's face the truth. This CA came into being with the participation of 78 percent people in 2013 elections. More than 85 percent lawmakers in the presence of 89 percent of lawmakers endorsed and ratified this constitution. This is an unprecedented endorsement of any constitution in the world. Only 65 percent members had voted in favor of the constitution in India's CA, and only 52 percent had endorsed the US constitution. Besides, our CA is among the most inclusive. Thus I have no hesitation in saying that our constitution is inclusive, unique and one of the best.
Why did some parties boycott the constitution process then?
There is no logic to this claim. Their participation in Legislature Parliament during PM's election and their participation in it now both show they have reservations on certain issues but they are not completely opposed to the constitution. Their participation in the CA is in line with the new constitution. Even those who dismiss this constitution share its ownership. They will find their contribution reflected in it. Even Mohan Baidya-led Maoist party which boycotted the second CA polls will find its voices reflected in it because they were in the first CA, the decisions of which the second CA has accommodated. Madheshi parties were in the constitutional process until the last moment. They walked out over differences over few issues. Even so, attempts are being made to accommodate their grievances through amendments.
There must have been tremendous pressure to defer the new charter. How did you handle it?
Any such pressure would ultimately bounce to me as the head of the CA. But I had clearly told the parties that they must create some basis for consensus and move ahead accordingly. Thankfully, they stood as one. At least an overwhelming majority of CA did. We could not lose the momentum that had been built. Frankly, there were repeated requests, pressures and exhortations at every step from various power centers to stop. I faced them all with a smile and moved on.
The agitating parties claim there is nothing for them in the constitution.
I request all those who say so to read the constitution first. Compare the provisions of this constitution with constitutions of other countries before you pass judgments. There are two ways of arriving at a conclusion. Either you first derive conclusion and then try to find evidence to back it. Or you first assess the situation, make a thorough analysis of available documents and then reach a conclusion. Those dismissing the constitution are following the first approach. So I request all those who are crying foul to read the constitution.
On the other hand, I have some people telling me that since this constitution has everything under the sun, it could disappoint people when tall promises can't be honored. My claim is that our constitution is inclusive, women-friendly, Janajati-friendly, Madhesh-friendly and people-friendly. I must admit that we could not deliver this message to the people on time. The parties, the CA, the civil society and even the government failed to communicate to people all the good aspects of the constitution.
Madheshi parties doubt the legitimacy of the constitution brought through a fast-track approach. Indian Minister for External Minister Sushma Swaraj expressed the same doubt in her Rajya Sabha address Monday.
We spent four years of the first CA discussing the clauses and provisions that now appear in the new constitution. Then we spent two more years doing the same in the second CA. The second CA set its calendar by stepping on the achievements of the first CA. The second CA set a one-year timeframe to complete the process. All the parties, including those agitating in Madhesh, had expressed their commitment to complete constitution writing within a year of the second CA's sitting. We made utmost effort for consensus and in case consensus failed to promulgate the constitution through majority votes. Read the electoral manifestoes of political parties before the second CA elections.
Based on this commitment, we should have had a constitution by January 22, 2015. But we could not. We took one more year. Thus the claim that there was no discussion and no due process is baseless. We discussed for over seven years, to the point that some even doubted our commitment. You will waste four more years, they taunted us. How can anyone claim that we settled everything in two days? We went to the people for their feedback twice: First to collect their opinion to accommodate it in draft constitution and then to gather their views on the draft constitution. The draft was revised accordingly. We took feedback from general people, organizations in and out of the country and even Supreme Court over demarcation issue. The draft was revised accordingly. If some say the constitution was settled in two days, it means they are unaware of our constitutional process.
You said our constitution is among the best in the world. If so why were amendments proposed less than a week after its promulgation?
We studied the constitutions and constitution processes of many countries, including those of our neighboring countries. We tried to accommodate good aspects of those documents and tried to make ours better. Take constituency delineation based on population and geography, which has been made to appear like the most contentious issue by agitating parties. Compare our provisions with that of India and you judge yourself. There is no uniform population in Indian constituencies. For example, Lakshadweep constituency has 47,972 people; Daman and Diu has 102,260; Ladakh of Jammu and Kashmir has 159,949; Dadra has 188,783; and Andaman Nicobar Islands has 257,856. Why this difference?
We found that not only population but also geography and other cultural factors were made the basis of constituency delineation. We emulated this practice. So we have a provision of considering both population and geography in constituency delineation. We also studied India's experience in constituency review. India has recently set 50 years as a timeframe for constituency review. Ours is only 20 years. I don't understand how 20 years can be considered long. Let us compare our constitutional provisions with that of other countries as well.
How many countries ensure 33 percent women's representation in legislature? In how many other countries have women occupied the highest posts? We now have a woman President, a woman Speaker and soon we will have a woman Chief Justice. Don't dismiss these achievements.
After his address to parliament in 2014, Indian Prime Minister Narendra Modi had provided us a VCD of India's constitutional process. We used this as a reference material. I wonder what makes them (the Indians) think our constitution has nothing good in it.
Why do you think that the protesting Madhesh-based parties want?
Political parties in Nepal came together for the first time in June this year and agreed to take constitution process forward by leaving state demarcation to a future Federal Commission. Some of our friends insisted on settling demarcation before promulgation. They said that this was a ploy to dilute federalism. Supreme Court also ruled that the new constitution should include province borders.
So parties demarcated provincial boundaries accordingly. But then there was the opposition. This makes me wonder sometimes what the protesting parties really want. Their demand for accommodation of their concerns should be fulfilled. But the venue to do so is again Legislature Parliament. They should come back to it. We have a flexible provision for amendment. Except for sovereignty, territorial integrity, independence and sovereignty vested in people, other provisions are open to amendment. Indian constitution has been amended 122 times so far. Amending a constitution does not make it weak.
It is said our citizenship provision is rather regressive.
We settled on current provision of citizenship after a long discussion. Countries define their citizenship policies based on their needs and contexts. There are some countries which openly welcome foreigners and encourage them to settle down. Nepal cannot be compared with those countries. Questions are often raised over provision for naturalized citizens. Take the American example. Arnold Schwarzenegger, the American actor of Austrian origin was a popular leader. But even he had to settle for governorship of California; he could not run for American President because of his Austrian origins. Even in India, political actors have been barred from top posts due to their citizenship status. Every country has its own rules on citizenship. And yet, all political parties are ready to sit together and discuss this issue.
