Presentations, 3/20, Various TopicsPresentation Transcript
A Brief History of Nepal
Nepal governed by Hindu norms and values (Dharmasastra)
Caste system was prevalent
No standard to govern the relationship between
Hindu belief: Gave kings all the powers with no restrictions
Then came Jang Bahadur (1846) who codified laws, introduced rules for
governance (National Civil Code of 1854). These laws were mostly
concerned with relationship of the castes
Nepal had six constitutions: 1948, 1951,1959,1962,1990 and the Interim Constitution of 2007
After Indian independence, Padma Shamsher promulgated Government of Nepal act 1948 to appease the people. It was written by the help of Indian experts
But he was kicked out of office soon and the act didn’t come into operation
Power was restored to the monarchy in 1951 and an Interim Constitution was drafted by the participation of Ranas and Nepali Congress with the help of Indian experts
This constitution lasted 8 years (10 governments were formed during these 8 years and constitution was frequently amended). This political battle gave King the upper hand
Nepali Constitutions ….
Then came King Mahendra who had little intention to hold constitution assembly election
After coming under pressure, Constitution of Kingdom of Nepal was formed in 1959 with the help of British experts
Parliamentary election was held – BP Koirala led Nepali congress won two-thirds of the seats
But after 18 months, King Mahendra declared emergency, dissolved the parliament. He declared that a parliamentary system was unsuitable for Nepal due to lack of education and political consciousness in Nepalese
In 1962, Panchayat Constitution was drafted --- in one month
To appease agitating students, referendum was held in 1979 to choose between Panchayat and multiparty system. But the referendum was manipulated
Finally Jana Andolan I restored power back to the people and the 1990 Constitution was drafted
Making of the 1990 Constitution
It was largely the work of Nepali Congress and CPN(UML)
It was made through greater consultation of people unlike previous Constitutions
The drafting commission disregarded recommendations related to rights and demands of Dalits, ethnic and marginalized communities, women and rural people
The cabinet and subsequently the King made changes in the drafts prepared by the commission
Basic structure of government was as in UK and India with prime minister and ministers are members of the legislature
A full judicial system was finally set up
It was a multiparty democratic system
Had some provisions for human rights
It recognized all mother tongues as national languages and Nepal as a multiethnic and multilingual country
For Accountability it had several committees: Auditor General, Election Commission, Public Service Commission, Commission for Investigation of Abuse of Authority. Human Rights Commission was added on the 2007 Interim Constitution
Underlying Principles in the 1990 Constitution
Preamble: …sovereign authority inherent in the people…this Constitution made with the widest possible participation of the Nepalese people, to guarantee basic human rights..to consolidate Adult Franchise, Parliamentary system of Government, Constitutional Monarchy and Multi Party Democracy…bond of unity on the basis of liberty and equality…Rule of Law…I promulgate this Constitution on the recommendation and advice of the Council of Ministers
As stated in the preamble of the Constitution, there were four interconnected principles in the 1990 Constitution: Multiparty Democracy, Parliamentary System of Government, Constitutional Monarchy, and National Unity
Sovereignty (power and authority) vested in people as opposed to the King (as in the previous Constitution). 1990 Constitution recognized sovereignty of the people for the first time
Dignity, liberty and rights of individuals recognized
Periodic election is required and the parliament had two houses
Party must establish a minimum degree of public support and establish internal democracy within the party
For check and balance, power was divided among the King, Parliament, Council of Ministers and the Judiciary
A number of independent authorities were established
The state was unitary and centralized. But the Constitution directed government (through directive principles, Art 24 and 25 which were not legally binding) to promote decentralization of administration
The nature of Nepali Democracy depended on the nature of political parties and their behavior in the government and in opposition. But there was a lot of power struggle and no government lasted for its full term
Constitutional monarch expressed the unity of the country
King was obliged to abide by the constitution, but his conducts couldn’t be questioned in court or discussed in the parliament and his properties weren’t taxed
King was supposed to make his decision on the recommendation and advice (not instruction) of the Council of Ministers
These words gave room for ambiguity and even an upper hand to the King
As a result, there were several examples of contention between Monarchy, Parliament and Supreme Court
And finally, King Gyanendra used article 127 (King could issue order to remove difficulties to bring constitution into effect) to form Council of Ministers of his own choice and the country was governed from 2002-2006 (until Jana Andolan II) under the authority of article 127
Constitutional Monarchy … and the Army
Constitution tried to bring the Army under the government
National Defense Council was formed as prime minister as the chair
King was the supreme commander but was supposed to manage the army under the recommendation of National Defense Council
But no prime minister was able to mobilize and control the army. Girija Koirala resigned as prime minister because the Army didn’t cooperate with him
Competition between political parties and practice of dissolving the house prior to its term gave King the opportunity to interfere
Constitution tried to promote national unity by a bond of common aspiration and faith ….irrespective of religion, race, caste, tribe…(Art 2)
But unity was driven by a specific sense of Nepali identity based on one religion, one language and one culture, even tough Nepal was described as multi-religious and multilingual
All the state powers were centralized, and minorities marginalized
Upper house could have been used to represent minorities, but was it rather reproduced party membership
Language, Religion and Culture
Nepal was declared a Hindu state and King an ‘adherent of Aryan Culture and Hindu Religion’ (Art 27), but King was also declared ‘symbol of Nepali nation and unity of Nepali people’.
Constitution recognized all mother languages, but only instructed primary level education in mother tongue. Implication – no state assistance to promote or learn in their own language
Constitution prohibits creation of political party ‘on the basis of religion, community, tribe, caste or rationality’ (Art 112(3))
It forced minorities to operate through political parties over which they had little influence
Why the 1990 Constitution failed
Elites had upper hand. Affirmative actions, better representation and decentralization weren’t promoted
Political parties failed in establishing participatory democracy
Politicians were corrupt and indulged in favoritism
Unconstitutional initiatives by the King
Supreme Court misread the spirit of the constitution (In 1998 the court invalidated the use of Maithili and Newari languages in local administration)
Constitution was unable to address the diversity of Nepali people
Representation of marginalized groups worsened under the 1990 Constitution
Maoist insurgency in mid-1990
Who is to blame ?
The Constitution itself?
Lessons to be learned
Constitution making should be more participatory and everybody’s voice should be heard
Equality of opportunity and access – affirmative actions and empowerment of the disadvantaged
Right to education, health and security should be upheld. Directive principles should be binding and constitution implementation commissions should be established
Reform of political parties…not sure how?
Clarity of language in the Constitution
Jana Andolan II
Jana Andolan II was successful in bringing the king to his knees who conceded that the sovereignty belonged to the people. Immediately, the House repealed all provisions related to the monarchy
The seven political parties and Maoists came together to respond to the wishes of the people – to establish new social, political and economic order
3/20/2010 The Interim Constitution of Nepal 2063 BS
‘ Special’ Provisions
“ WE, THE PEOPLE OF NEPAL, IN EXERCISE OF THE SOVEREIGN POWERS AND STATE AUTHORITY INHERENT IN US …”
Right to Freedom
Right to Equality
Right against Untouchability and Racial Discrimination
Rights regarding Publication, Broadcasting and Press
Rights regarding Environment and Health
Education and Cultural Rights
Rights regarding Employment and Social Security
Right to Property
Rights of Women
Right to Social Justice
Rights of Children
Right to Religion
Rights regarding Justice
Right against Preventive Detention
Right against Torture
Right to Information
Right to Privacy
Right against Exploitation
Right regarding Labor
Right against Exile
Right to Constitutional Remedy
Power vested in the Council of Ministers
Executive Functions exercised as Government of Nepal
Council of Ministers
Appointment of non-member of Legislature-Parliament as Minister
PM may appoint any person as Deputy Prime Minister, Minister, State Minister, or Assistant Minister, on the basis of political consensus
One member elected from each geographical constituency
Members elected according to the proportional representation system
Members nominated by the Interim Council of Ministers
At least ¼ need to be present
Legislature - Parliament
330 Members (329 actual)
Citizen of Nepal
At least 25 years of age
Committed to the spirit of the ‘People’s Movement’
Not holding any Place of Profit
Vote of Confidence
¼ of total number required to propose a no-confidence motion
Decided by 2/3 majority
Introduction of Bill Bill Passage Resolution
Introduction of Bill Bill Passage Resolution
7 day’s notice to Secretary General or Secretary of Legislature-Parliament (5 days for a Govt. Bill)
Copies made available 2 days before introduction
Propose bill in the House
If accepted, then discuss clause by clause
Simple majority is enough
Constituent Assembly Court*
Inspects, supervises, and gives directives to its subordinates
Court of Record (contempt for itself and subsidiaries)
PM Appointed, 3 years as Supreme Court Judge
Appellate Judge for 7 yrs/15 yrs experience/1 st class officer for 12 yrs
Judges appointed by Chief Justice
with Judicial Council Recommendation
Bachelors Degree in Law +
7 yrs exp. as 1 st class officer
10 yrs exp. as advocate or senior advocate
10 yrs exp teaching law
10 yrs exp. in related field
Nepali Citizen with Bachelor’s degree in Law +
8 years exp as 2 nd class officer / advocate
Passed the written and oral exams of the Judicial Council
Inquiries against a judge
Chairperson – Chief Justice
Minister of Justice, Senior-most Judge of the Supreme Court, Jurist nominated by PM, Senior Advocate / Advocate with 20 yrs experience appointed by Chief Justice
Judicial Service Commission
Appoints, transfers, promotes gazetted officers
Chairperson – Chief Justice
Minister of Justice, Senior-most Judge of the Supreme Court, Chairperson of the Public Service Commission, Attorney General
Other Notable Provisions
Responsibilities, Directive Principles and Policies of the state
Responsibilities of the State
Provision Regarding the Army
What is the Constituent Assembly
A body of representatives, elected and/or nominated to write a constitution.
CA was elected in April 2008, for a term of 2 years with a possible extension for 6 additional months.
25 political parties represented.
The Maoists hold a majority of the seats.
Structure of the CA
Currently consists of 601 members
240 elected in a direct vote in constituencies
335 elected through proportional representation from party lists
26 are nominated “prominent persons of national life”, i.e. experts
Each responsible for one part/chapter of the constitution
Deliberate and work out a political consensus on contentious issues related to their field
Present a rough draft to the full house
Full house discusses and amends the draft
Submit the revised draft
Preliminary constitution draft
CA members visit their representative constituencies to gather public opinion
Technical committee drafts a rough draft
Discussion and adoption of the draft by the drafting committee
Discussion of the draft by the full house
Procedures to pass a constitution bill
The CA shall vote on the preamble and each article
There must be at least 2/3 members present
The motion must pass unanimously
If unanimous consensus not reach, the disagreeing members will hold a consultation session and CA will re-vote
If decision not reached, there will be voting again, and if there are 2/3 of the members present and 2/3 of those present vote for the bill, it shall pass.
This discussion will be recorded for transparency and future reference
Release of preliminary draft for public feedback.
Revision of the draft by drafting committee based feedback.
Also a provision for referendum in case of severe disagreement
Final draft by the drafting committee based on public response.
Final voting on the draft constitution by the full house.
Acceptance of the new constitution by the CA.
Systems of Government: Parliamentary vs. Presidential (Executive Structure) Parliamentary Presidential Head of state is different from head of government The president is both head of state and government Head of state is ceremonial and decided by some electoral college Head of state is directly elected Head of government is elected from the parliament Head of government is the president PM appoints a cabinet of ministers to run the government. Responsibility for government actions is shared among the ministers. President appoints a cabinet but executive power is vested entirely in the president. His ministers are simply advisors. PM can be removed by vote of no confidence and PM can dissolve the parliament. President has no power to dissolve the legislature but can be removed by impeachment. PM and his cabinet are members of the legislature President is completely separate from the legislature and he and his cabinet cannot be members of it.
Systems of Government (Jobs of the Legislative) 1. Pass Laws 2. Approve the Budget 3. Appoint the head of state and government (parliamentary system) 4. Remove the head of government 5. Approve the appointment of ministers and other personnel as well as dismiss judges. 5. Debate national issues and oversee actions of the executive.
Systems of Government (UN resolution for characteristics of the Judiciary) 1. Independence 2. Impartiality 3. Power to decide all judicial issues 4. Interference free and not revisable by other bodies 5. Everyone should have the right to a trial 6. Judges must have ability and integrity and their terms and compensation must be protected by law.
14 years since the start of the insurgency
Nearly 13,000 people killed and nearly 200,000 people displaced
7 cantonments and 21 satellites across the country, under partial UN monitoring
19,602 PLA members still part of the cantonments
Special Committee for the Supervision, Integration and Rehabilitation of Maoist Combatants is tasked with this integration effort
The committee consists of nine members, two representatives from each of the three largest parties – the UCPN (Maoist), the Nepali Congress, the CPN (UML) – and one from each of the three Madhesi parties
High-Level Political Mechanism (HLPM), which consists of the leaders of the 3 main political parties, was recently created to own responsibility for decision-making on key issues – such as the number of combatants that will be integrated into the national-security institutions, as well as the norms and modalities of integration
Nanda Kishor Pun (aka ‘Pasang’) is the PLA’s chief commander
Barsa Man Pun (aka ‘Ananta’), a Maoist member of the Special Committee and former deputy commander of the PLA
Special Committee Proposal
Individual Recruitment (as opposed to unit)
PLA combatants can take one of three options:
Work in the party organization
Rehabilitate in the society
Integrate into one of the 4 national security institutions: the Nepali Army, the civilian Nepali Police, the Armed Police Force or the Department of Investigation
Up to 5000 combatants to be integrated
Points of Contention
Maoists opposed to individual recruitment, 5000 is too small
NA opposed to unit-wise integration
Maoists opposed to education requirements for army levels (because the education system is part of the bourgeois system the Maoists are trying to bring down)
Maoist priority to integrating higher-ranking Maoist commanders
NA opposed to accepting divisional commanders because they are more strongly motivated by party ideology or “ideologically indoctrinated”
Points of Contention
Ruling parties want the process of integration to be complete before the new constitution is completed
Maoists trying to stall integration until the CA decides on a new national security policy
Lots of fluff, very little substance
Forming committees to satisfy a group
Dissolving committees because a party walks away because of conflict
Lack of trust: political parties dont trust each other. Nepal doesnt trust India. People don’t trust the govt and the elected officials with their responsibilities
The lieutenant-level PLA members are the most concerned about individual-level recruitment but if the Maoist upper brass has to give in during the course of negotiations, unit-wise integration would probably be the first thing they give up
Maoists trying to leverage the cantonments to strengthen their position in amending the Army Act and rewriting the constitution, effectively trying to delay the integration efforts
There is always a possibility that the political parties or the Maoists might not be in agreement with the decision reached by the Special Committee
Diversity and Secularism History & Origin of Discrimination -Sabin
Diversity (Religion) Total Population: 29 mil (2009 estimate)
Diversity (Language) 92 different languages
Diversity (Caste/Ethnicities) Total Population: 29 mil (2009 estimate) 103 different castes and ethnic groups
In 1768, PNS unified Nepal and characterized Nepal as “a garden of 4 caste and thirty-six varnas.”
However, the unification introduced Hindu and Caste domination in bigger scale.
The new unified Nepal was guided by the principles of Hindu Shastras and Laws.
Mission: To build “asali Hindustan”
Jung Bahadur Rana indroduced the first Nepalese code: Muluki Ain in 1854.
Codified Hindu dominant system and Caste hierarchy
Placed Tagadhari Brahmin and Chhetris on the top and declared indigenous people as Matwali (alcohol drinking group).
Panchayat Era: (1960-1990)
“ One language, One Dress ” was officially promoted
To become citizens of Nepal, people were required to speak khas Nepali Language and follow hindu religion.
Constitution of Nepal 1962 declared Nepal as Hindu Kingdom for the first time and discouraged any debates pertaining to national culture by calling them Communal and anti-national .
Advent of Democracy and New constitution in 1990
The constitution characterized Nepal as “a multiethnic, multilingual kingdom” and at the same time declares Nepal as “a Hindu Constitutional Monarchial Kingdom.”
Failed to address indigenous people
Discrimination, Civil war….
Maoists were able to exploit their anger to support their “People’s War”.
Interim Constitution (2007) and its efforts:
Declared Nepal as a Federal Democratic Republican State.
Represented a significant step forward over past constitutions in specifying diversity and social inclusion for people in Nepal.
Rights such as freedom and equality, against untouchability/racial discrimination, women and social justice were more clarified than past constitutions.
It also declares that “ all languages spoken as mother tongues in Nepal are the national languages of Nepal and the Nepali language..shall be the language of official business.”
New Constitution and how diversity and social inclusion can be ensured? (from CCD article)
Find ways to guarantee basic human rights by specifying effective implementation mechanisms and procedures.
Build federal structures suitable to the demographics of Nepal considering its diversified ethnic, geographical, social, and cultural structure, distribution of its resources and other ground realities of the country.
Provide adequate independence and rights to constituent local regions under federal structure.
Prioritize the rights of minority groups, Madhesi, Dalits and women.
Provide for effective and participatory local self governance.
Gender Issues – Citizenship
Demands made by a coalition of women’s groups:
No discrimination shall be made against any citizen in the application of general laws
There should be a provision of equal rights to citizenship for women and men.
Women allowed to pass on their citizenship to their children
A foreign man married to a Nepali woman should be allowed to acquire Nepali citizenship
Gender Issues – Equality
Equal ancestral property rights for sons and daughters
A law has been passed to this effect, but now has to be in the constitution
Equal pay for equal work
No gender discrimination in employment decisions
army regulation prohibits employment of married women in combatant forces
2001 Supreme Court ruling that said women not allowed foreign employment without prior approval from a guardian or the government
Equal access to state resources
Equal ownership rights
Equal rights to decision making in marriage, divorce and reproduction
Equal participation of male family members in domestic chores
50% of seats reserved for women in:
Council of minister
Commissions such as CIAA and National Security Council
International representation posts
All political parties
At least 1 woman as President/ Vice-President of party
At least 1 woman as Speaker of Deputy Speaker
Right to free education up to graduate level
Right to reproductive health
Eg: make confining women to cowsheds after giving birth illegal
Right to special privileges from the state for professional development
Right to free legal aid from the state
Special reservation for women in education and employment
Unemployment allowances if unemployed
Tribhuvan University’s attempt to reserve seats for women and minorities was deemed invalid by the Supreme Court
No woman should be subjected to forced labor and work without appropriate remuneration.
Right to form trade unions for protection of rights and interests
Violence, sexual harassment and sexual exploitation at work place and at home is punished and victim gets compensation
Eg: marital rape
restrictions on publication, broadcasting or display of material that advertises women as sex objects
Provision for a six member National Women and Gender Justice Promotion Commission for rights protection and implementation of pertinent laws.