Thursday, June 4, 2009

A Model Constitution for Nepal Released

Constituent Assembly Dialogue Bulletin, Year 1, June-July, Issue 3 at pp 12-13 (Society for Constitutional and parliamentary Exercises, SCOPE, 2009)

  • A Model Constitution for Nepal Released

    A model constitution for Nepal was released on May 21 with a view to provide exhaustive expert inputs to the constitution making exercises going on at the Constituent Assembly. The model comprises 26 Chapters, 297 Articles, and six schedules.

    Drafted by a senior constitutional expert, Dr Bipin Adhikari, the Model Constitution of Nepal is intended to help stimulate rational discussions on core constitutional issues facing the country. The document aims to assist the Constituent Assembly to draft a new constitution within the mandated timeframe. This initiative also creates an open space for constitutional conversation in the following areas.

  • Supremacy of the constitution
  • Devolution of power to the provinces
  • Seven provinces and seventy-five self-government units
  • Exhaustive provisions to regulate the centre-province relations
  • Parliamentary system at the central level and presidential system at provinces
  • New fundamental rights (including affirmative actions, the rights of youths, senior citizens, preventive health, water-borne diseases, maternity care, labours in the unorganized sector, access to placement services, good governance rights, diplomatic protection abroad, etc)
  • Thorough protection of indigenous people and minorities through inclusive electoral system and provisions of non-discrimination
  • Parliamentary mechanism for assessment of governmental compliance with directive principles and policies of state
  • Powerful prime minister and cabinet government
  • Creation of a head of the state advisory commission
  • Enhanced executive-legislative relations
  • A unified national judiciary with the power to judge question of unconstitutionality
    Establishment of a commission to deal with the rights of indigenous people, people labelled as 'sanojat' and minorities
  • Empowerment of independent constitutional bodies and furtherance of their accountability to the parliament
  • Regulation of political parties including its financial operations
  • Compulsory military training

    In this draft model, lawyer and former UN Legal expert Dr. Adhikari lays out the framework for a multiethnic, multilingual, multicultural and democratic society. The model contains provisions to empower deprived and marginalized communities and places political initiative in the hands of citizens.

    The model constitution is based on a parliamentary form of government at the centre and a presidential system at the provincial level. The draft incorporates new fundamental rights, increases ministerial accountability to parliament and provides for autonomous provinces and self-government. It enhances the role of constitutional watchdogs and also increases their pubic accountability. The draft was prepared drawing on learning from past experience as well as trends and innovations in other parliamentary democracies.

    Launching the draft, National Human Rights Commission Chairman and former Chief Justice Mr Kedar Nath Upadhyay said that the expert draft addresses many complicated issues that the new constitution of Nepal will have to deal with. He also added that this draft should serve as an important reference point for the work being undertaken by the CA.

    The draft was also commented upon by senior political leaders Chakra Prasad Bastola of Nepali Congress, Bharat Mohan Adhikari of CPN (UML), and Suresh Aale Magar of UCPN (Maoist). While the first two commentators applauded the efforts of the author to deal with almost all political problems of Nepal comprehensively, and within the liberal democratic framework, the Maoist representative said the draft, although very useful for the Constituent Assembly, had class orientation. He also said the Janjatis will not accept his provinces based on geography.

    Senior Advocate and President of Nepal Bar Association Mr Biswa Kant Mainali also expressed his views on the model. He said the document has professionally responded to most of the current issues that Nepal is supposed to deal with through the Constituent Assembly. As such, he said the model constitution must be taken seriously. However, he commented that the author should have avoided dealing with the proposed Commission on the Protection of Indigenous People, People Depreciated as Lower Castes and Minorities as a permanent feature of the constitution. He also said the reference about the right to self determination in the model constitution may eventually be the basis for divisive arguments.

    A representative of the Consortium of Constitutional Experts (CONCOE), which supported the initiative, said the Madhesi Janadhikar Forum leaders Bijay Kumar Gacchadar was not able to participate due to their central committee meeting.

    Referring to the draft constitution, Dr Adhikari said it would be difficult to ensure genuine public participation without an expert draft on the table. He added that this had not happened thus far. “Abstract debates without any clear cut drafts cannot stimulate discussions as necessary. It will not guarantee the making a good constitution”, Dr. Adhikari said.

    This draft intends to offer something very tangible for discussion across the country and in the floor of the CA. Participatory constitution making is today a basic feature of constitutional life. It is also an important objective in itself. Despite challenging difficulties of definition and implementation, a democratic constitution-making process will be critical for the durability, acceptability, and legitimacy of the final product.

    Referring to Nepal's experience with six written constitutions over a period of 59 years, Dr. Adhikari emphasized that the early demise of constitutions are usually due to factors other than those relating to the Constitution itself. Experiences of several small countries like Nepal point to the fact that design aspects have little effect on the durability of constitutions. He further noted, "As our history has shown, our circumstances do not appear propitious even for the seventh constitution which is currently being drafted through the Constituent Assembly."

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