Some Comments On Preliminary Draft Constitution Of Nepal

Sushil-led Government-60: Some Comments On Preliminary Draft Constitution Of Nepal

Siddhi B Ranjitkar

Chairman of the Constitution-drafting Committee Krishna Prasad Sitaula presented the chairman of the constituent assembly Subhash Nemwang with a preliminary draft of a new constitution. Everybody needed to keep in mind that it was only a preliminary draft. However, some members of the constituent assembly (CA) managed to tear it up in opposition and others burnt it out on the street. Is that the way of expressing their opposition in the democratic system? The members in question needed to think before indulging in such a violent opposition to the just preliminary draft constitution. They could strike out whatever they did not want and insert whatever they wanted into the preliminary draft. The draft was surely a step forward to institutionalize the democratic system. So, we needed to improve it as we moved forward. The right thing to do for the opponents might be to oppose the articles they did not like than burning the whole draft.

The preliminary draft constitution Mr. Sitaula had presented the Chairman Nemwang on June 30, 2015 with was certainly the victory of the two-thirds-majority political parties. It was for the parliamentary system of governance even though the politicians had already proved that it was the system that had institutionalized the corruption, set the corruption network firmly rooted in every walk of the political and economical lives of the country and it had made the parliament as the market hub where the political leaders bought and sold members of parliament shamelessly disregarding the people’s aspirations for the democratic system of governance following the rule of law.

Even though the constitution was just the preliminary draft, some of the members of the CA stood up and tore up the draft at the CA on camera. The preliminary draft meant every member of the CA had the opportunity to take off from it whatever s/he did not like and then insert whatever s/he might want into, and then deliberate those things in the full house of the CA. It was to be passed by the two-thirds majority. The preliminary draft constitution had made a provision for the amendment to it with the two-thirds majority. So, the opponents had time in the future too to take off whatever they did not like from it even after the constitution became the law.

Whoever wanted to insert whatever into the constitution had the chance of going to the people, and convinced the people what was needed or not needed in the constitution, and then get the two-thirds majority in the parliament and then make an amendment to the constitution. That was the democratic way of doing the political business in the democratic system of governance not to violently react to whatever they did not like. It was time for the Nepalese politicians to act responsibly, rationally and peacefully rather than trying to do everything in the revolutionary way and fight on the streets. Fighting violently justified only when they did not have any rights to express peacefully their opposition to the things they did not like.

One small analogy is if you have something that you don’t like in a house you don’t burn your house. Do you? Certainly not rather you will throw away the piece that you don’t like it in the house. You needed to have the same approach to the preliminary draft constitution rather than burning it on the streets. Keep in mind; the constitution was only a preliminary and the draft. Everybody has sufficient time and voice to make it a final.

Now, the preliminary draft has clearly defined Nepal as a Federal Democratic Republic going against one of the political leaders named Chitra Bahadur KC that had been madly against the federalism and advocated for a unitary system of governance. It has made ‘cow’ a national animal to the liking of the advocate of Hinduism such as the leader of RPP-Nepal Kamal Thapa. It also stated Nepal would be a secular country to suit the interest of the Nepalese other than Hindus. So, it has something for everybody.

It has made the Nepali language the lingua franca for the official purposes at the federal level but at the provincial level every province could use one or more local languages in addition to the Nepali for the official purposes. [Part 1 article 7 (1) and (2)].

Concerning the citizenship every person born in Nepal to the Nepalese mother and father would get the descendant citizenship [Part 2 article 12 (2)] others would have the naturalized citizenship but I did not find anything in the preliminary draft constitution that would make the naturalized citizens less privileged.

Now, if you are a foreigner marrying a Nepalese woman, you want to have a Nepalese citizenship then you have to stay in the country for 15 years before you could be eligible for the citizenship. However, if you are a woman and marries a Nepalese man you want to be a Nepalese citizen you would get it next day of the wedding [Part 2 article 13 (1) and (2)]. Is it not a great bias against men and gender bias against women? Is it the provision made for stopping the inflow of the men from the neighboring countries?

Non-resident Nepalese could cheer up if the provision made in the preliminary draft constitution stayed on. It stated that non-resident Nepalese shall have non-resident citizenship with economic, social and cultural rights [Part 2 article 19]. Is it not nice to have the Nepalese citizenship even if they live somewhere across seven seas. However, they could not participate in the political business. The provision must be for stopping the non-resident Nepalese with the power of money from interfering in the Nepalese political businesses.

One interesting provision made in the draft was that citizens of any areas added to the country in the future shall be Nepalese citizens [Pat 2 article 14]. Was it not an ambitious prevision? Would any part of the current India and China be added to Nepal? Some political leaders might have an idea how to win such parts of the neighboring countries or maybe, they anticipated some new islands to be found out in the Indian Ocean to add to Nepal.

The draft constitution removed the gender bias concerning the ancestral or parental property. Both the sons and daughters shall have the equal rights to the parental property [Part 3 article 23 (5)]. The patriarchal Nepalese society would improve to the more equitable society with the provision. Parents would treat both sons and daughters equally. The biased Nepalese society had forced some parents to have several daughters before having a son. Some parents even not managed to have a son even after several daughters born to them.

Concerning the fundamental rights, the draft has stated that women shall have the proportional representation in the state mechanism [Part 3 article 43 (4)]; husband and wife shall have equal rights to the family property and the business [Part 3 article 43 (6)]. Dalits shall have jobs at the civil administration, army, police and other state agencies following the inclusive principles [Part 3 article 45 (1). Dalit students shall have scholarships from the primary to the higher education [Part 3 article 45 (2)]. The State shall have to provide the landless dalits with the one-time land [Part 3 article 45 (5)].

Some shrewd dalits might sell their property and registered as landless and claim for the land the state shall provide them with following the constitution. Other Nepalese might even register themselves as dalits to claim for the free land the State shall provide.

The draft has stated that the public, cooperative and privates sectors participation in an independent development shall be the strength of the national economy [Pat 4 article 55 (d) (1)]. Foreign investment and technology shall be in the import-substitution and export-promotion and infrastructure development [Part 4 55 (d) (10)]. Thus, the door to the foreign direct investment was only partially opened. The draft constitution has given the impression that the state would do almost everything for the people. The state would regularize the private sector investment in the education and health. In the name of regularizing the private investment if the State were to interfere in the private business then it would be hazardous to the healthy economy.

The most revolutionary provision made in the draft was the ending of the dual ownership of the land [Part 4 article 55 (e) (1)] means only one (landowner or tenant) would claim for any land. Currently, the landowners have to share the land with the tenants. Landowners had been reluctant to give land to tillers fearing the tillers would claim the half of the land as the tenants’ claim the law had made provision for. The landowners would not have such fear after the provision made in the draft. It was a great victory for the landowners.

An effective mechanism shall be adopted for controlling the corruption and irregularities in the political, administrative, social and other areas [Part 4 article (k) (3)]. What was the effective mechanism the draft did not state. All the previous governments starting from the rule of Prithvi Narayan Shah had institutionalized the corruption, and the rulers had made the state treasury as their private assets. Even today Finance Minster Dr Ram Sharan Mahat has the same mindset.

The draft has the provision for continuing the Commission on Investigation into Abuse of Authority (CIAA) for controlling the corruption in the country but it has been helpless to completely eradicate the abuse of authority even at its own organization. So, CIAA had no sufficient power to eliminate the corruption in the scale one could hardly imagined it needed.

The draft has stated that reviews of the past treaties, and new treaties shall be done following the principles of mutual benefits and equality [Part 4 article 55 (m) (2)]. It clearly indicated the treaties including the treaty of peace and friendship of 1951 Nepal has with India. That was a nice provision but each government in the past reluctant to approach the government of India even when the Indians were ready to revise the treaties.

The structure of the state shall be of the three levels. At the first level shall be the Federal Democratic Republic of Nepal, at the second level shall be the provinces, and at the third level shall be the local level called villages, municipalities and district assemblies [Part 5 article 60 (1)]. The country shall have eight provinces [Part 5 article 60 (3)]. The two-thirds majority of the CA shall pass the boundaries of such provinces (Part 5 article 60 (4)]. The two-thirds majority of the provincial parliaments shall pass the names of the provinces done following the article 60 (4) of the constitution [Part 5 article 60 (5)].

The federal legislature shall have a House of Representatives, and a National Assembly. House of Representatives shall have 275 members. Of them 165 shall be directly elected and 110 proportionally. The national assembly shall be of 45 members: directly elected five from each province and the president shall nominate five on the recommendation of the prime minister [Part 8 article 1]. National assembly shall be elected for six years but one third of the members’ term shall end after two years, and elections shall be held for the replacement every two year.

President and vice-president shall be elected by the electoral college of the members of the House of Representatives, national assembly, and of the provincial parliaments. The term of president shall be of five years. Any person could be president for two terms only. The majority of the House of Representatives shall elect the prime minister.

Speaker and deputy speaker of each parliament shall be elected. One of them shall be a woman. Each parliament shall have at least one third of women.

The preliminary draft constitution has been beneficial to the women, dalits, and landowners. It shall insure the representation of women in each parliament, and in the positions of speakers. Women shall have the equal share in the parental and family property. One main drawback Nepalese women shall have to face when they wed foreigners. Their husbands shall not receive the Nepalese citizenships until they have stayed in the country for 15 years. Dalits shall have the free education from the primary to the higher education. Landless dalits shall have one-time land from the state. Thus, the women and dalits shall be redressed for the suppression they suffered from for several millenniums. However, landowners have the huge benefit from not requiring to share the land with the tillers.

After the Madheshi People’s Movement, the United Democratic Madheshi Front had had an agreement with the government for the proportional representation in the civil administration, police, and army but the preliminary draft had skipped this provision.

Ethnic people have their say only in the provincial parliament. Their languages might be used at the provinces for the official purposes.

This constitution if the CA were to pass then it would be the beneficial to the parliamentary political parties. They could continue the corruption network in the civil, police, army, and judiciary and in the private sector. Neither the prime minister nor the president would be directly accountable to the voters. That was enough for them to disregard the voters’ needs and aspirations for the fast socio-economic development.

July 5, 2015

Annex:

The Buddha gave the following practical instructions, which would make the Licchavis unassailable: • As long as they maintain their unity and meet regularly, they will remain invincible. • As long as they meet together in unity, rise in unity and perform their duties in unity, they will remain invincible. • As long as they do not transgress their ancient principles of good governance and their system of justice, they will remain invincible. • As long as they revere, respect, venerate, and honor their elders and pay regard to their words, they will remain invincible. • As long as they protect their women and children, they will remain invincible. • As long as they venerate the objects of worship inside and outside their republic, and maintain monetary support for them, they will remain invincible. (Source: Vipassana Newsletter, Vol. 13, No. 4: 16 April 2003)

http://www.vridhamma.org/UploadNewsletter/PDF/en2003-04.pdf