Event ReportsPublished on Aug 17, 2010
Ms Menaka Guruswamy, Supreme Court lawyer, who has been associated with Constitution making in Nepal, outlined four major areas of divergence in Nepalese Constitution. Federalism is one such area which is highly contested.
Constitutional and political disconnect necessary for Nepal's stability

“It’s a conundrum in Nepal”, that’s how Menaka Guruswamy, Supreme Court advocate and a constitutional lawyer, summarises the current political imbroglio in Nepal.

Delivering a talk on the “Politics of Constitution-making in Nepal” at  Observer Research Foundation on Tuesday August 17, 2010, Ms. Guruswamy lamented that instead of moving towards democracy, Nepal is inclining more towards constitutionalism despite the fact that in the absence of democracy, Constitution cannot survive.

Besides highlighting the unwieldy nature of the Nepalese Constituent Assembly with 601 members from 25 political parties ning ideological divides, Ms Guruswamy underlined three vital processes which are running parallel to each other but are intertwined in such a way that is creating ruckus for the Constitution-making body.  The three processes include the ongoing game of political musical chairs, peace process which depends on the integration of the disbanded Maoists cadres for its success and democratization of the Nepal Army which is a paradox in itself. Also, the near capture of the Constituent Assembly by the three big political parties’ viz. Nepali Congress, Nepal Communist Party-United Marxist Leninist (NCP-UML)  and Unified Communist Party of Nepal-Maoists with over 400 seats is responsible for sidelining the viewpoints of the smaller political parties which is creating hurdles in consensus formation.

Post-conflict, extreme instability signifies Nepal. If one goes by the record of the successful post-conflict constitutions in other countries of the world, the number is quite dismal. Out of the total of 8000 post-conflict constitutions, only one-third can be rated as successful. Nepal should thus be aware of the pitfalls lying ahead if it fails to come up with the institutionalised structures and constitution making on time.

Ms Guruswamy outlined four major areas of divergence in Nepalese Constitution. Federalism is one such area which is highly contested. Constituent Assembly is divided on the issue of finding a base for the proposed Nepali Federation. The members are divided on what will constitute a base for the federation. They have speculated on many possibilities ranging from language to caste to ethnicity and land but failed to come up with definite answers. There are differences on the issue of the division of fiscal powers between the centre and its constituents. Second area of divergence is regarding the form of government. Whether it should be presidential or based on a Westminster system is a moot question. The third point is related to the independence of judiciary which includes the procedure for appointment of the judges. The other divisive issue in constitution making is over the required number and types of the fundamental rights needed for the people so that they can effectively exercise their basic freedoms.

Apart from these four contentious issues, there is a gross lack of trust and understanding essential for the success of the constitution-making process in Nepal. The people are also deeply discontented and perturbed by the fact that how their leaders who are supposed to run the nation are putting their personal interests before the interest of Nepal. Ms. Guruswamy said all 16 thematic committees, including the one which defines National Interest of Nepal, have submitted their reports to the CA.

Replying to questions, Ms. Guruswamy said the possibility of fresh elections as a wayout is virtually nill as no Member or party is interested in it.

(The report is prepared by Dr. Anjali Sharma, Associate Fellow, ORF)

The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.