Democratic Responsiveness in Nepal: A Case of Constitution Drafting Process by Constituent Assembly

Narendra Raj Paudel's picture
Abstract: 
This paper examines the ways and means of the constitution drafting process in Nepal. It is argued that preparation of the constitution draft depends upon the mandate of the Constituent Assembly election, constitution-drafting process and pressure from the public. It is assumed that the constitution has to address the needs and aspirations of the people. In this study, both primary and secondary sources of information were used to consolidate the study. Basically, primary information was gathered through an in-depth interview with politicians, law makers, political analysts, journalists and constitutional experts. So far as secondary information is concerned, the data was retrieved through the web page of the Constituent Assembly. In addition to this, other information about the meetings of Constituent Assembly was taken from the office records of Constituent Assembly Secretariat. The study revealed that Nepal adopted inductive approach to draft the new constitution. For this, 601 Constituent Assembly members were elected through Constituent Assembly election in 2008. Forty groups were formed to collect public opinion from all the constituencies. Near about five hundred thousand suggestions were collected. These suggestions were categorized on the basis of area coverage by thematic committees formed by the Constituent Assembly. Eventually, each thematic committee prepared the report and sent them to the Constituent Assembly via the constitutional committee. These reports were discussed in the Constituent Assembly. On the basis of reports and suggestions given by Constituent Assembly members, the constitutional committee prepared the preliminary draft of the constitution along with agreed and disagreed articles of the constitution. For arriving at consensus on the contentious issues, a sub-committee under the leadership of Prachanda (leader of main political party i.e. Unified Nepal Communist Party (Maoist) was formed under the constitutional committee. This committee narrowed down the 250 disputed issues of the constitution to 20. Basically, these disputes were related to forms of government, judiciary, elections and structure of federalism. The study revealed that Constituent Assembly members did not pay much attention to the draft constitution by focusing on the abovementioned disputes. Their discussions only began from minor issues which might be similar tothat other countries. At the last moment, they entered into the main issues of the constitution. The election result mandated them to draft the constitution on the basis of consensus. None of political parties had gained majority or two-thirds majority in the Constituent Assembly. The major challenges in drafting the constitution are different ideologies of the political parties, inter or intra-party conflict, instability of the government, the lingering integration of the Maoist combatants into the Nepali Army.
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1. Introduction

More than two-dozen countries in the world have drafted the constitution through the Constituent Assembly (CA). On the one hand, some of them have been functioning well e.g. in India (1952), France (1789), USA (1787), Ireland (2010), Italy (1947), Russia (1917) etc. On the other hand, some of them do not have a successful story about the constitution drafted by the CA such as Ethiopia. In the case of Nepal, the interest of the people to draft the constitution by CA came to the fore six decades ago. Due to the People’s Movement-II in 2006, the interest was realized with the Constituent Assembly election, but the constitution has not been drafted as yet. It raises the question of responsiveness of the government of Nepal (GoN).

In this context, this article examines the responsiveness of GoN in Nepal, even though Nepal has adopted the multi-party democratic system of governance since 1990. Twenty-two governments have changed in 22 years. The Constitution of 1990 was revoked due to theMaoist movement and the Interim Constitution, 2007 was promulgated. Prior to this, Nepal had the experience of drafting the constitution in 1956, 1961 and 1990 through the commission approach and experimented with the three constitutions as well. None of them existed for long. Due to the People's Movement-II, Nepal entered the republican system of governance, by abolishing monarchy in Nepal. For drafting the new constitution, 601 lawmakers were elected through the Constituent Assembly election in 2008. They have not finished their work within the stipulated time. So, the tenure of CA was extended four times. The mandate to the CA members was to draft the new constitution, which accommodates the needs and aspirations of the people. However, the CA's existence has already crossed four years, even though its tenure was fixed at two year at the beginning. Therefore, it is time to ask the question: Is the CA effective in drafting the constitution in Nepal?

Responsiveness to public needs, through a variety of institutions through which those needs can be articulated, is a key indication of the level of controlling influence which people have over government (Landman, nd, p11). Responsiveness is of great concern for political scientist to analyze the political system whether is dictatorship or democratic or tyrannical (Almond & Powell, 1976, p201). It is assumed that democratic forms of political systems are more responsive than the other types of political systems. In this system, the pressure and demands either internal or external or both must be responded to by the system. In this context, this paper analyzes to what extent the results of the election of 2008 is representative on the basis of socio-demographic variables; and how the business of the CA was carried out.

2. Methodology

This study is basically in an analytical-cum-explorative design. To answer the responsiveness of the governance in Nepal, the constitution-making process is taken for the study purpose. In this article, the argument is that drafting the constitution depends on the notion of the election of CA, the drafting process and time factors. In this study, both primary and secondary data were used to consolidate the study. Primary data were gathered through an in-depth interview with politicians, lawmakers, political analysts, journalists and members of the civil society. Schedule was made and interview taken with the said 10 respondents. Similarly, secondary data was also used in this study. Raw data regardingthe CA members was taken from the web page of CA. Out of the 601 CA members, only 592 members’ details were kept on the web page. Out of the absent nine members, some of them were dead, some of them were jailed, and some of them had been suspended. The detailed information of CA members was analyzed on the basis of gender, caste and ethnicity, ecological belt and development region by using SPSS package. Information from Centre Bureau of Statistics (CBS) was also used as per need.

3. Democratic responsiveness

Democracy is the best system to govern the people. It is because the needs and aspirations of the people are reflected in the policy, which is made by the elected leaders. Besides, each individual, group and society has to follow the rules and regulations in a democracy. Therefore, democracy is a norm-based system of governance. For the success of democracy, responsiveness is one of the indicators among others. Leonard Morlinno (2003) states that responsiveness or correspondence of the political decisions should be to the desires of the citizens. He further suggests that this is closely connected to accountability. It can be judged more substantively how government policies correspond to the citizens’ demands. However, the correspondence between the citizens’ ‘policy desire and government's policy outcomes is not sufficient measure of democratic responsiveness. It also depends on the institutionalized arrangements of the democracy such as its electoral processes (Pitkin, 1967, pp232-234).

Responsiveness has close connection with preferences and policies. The reason is philosophical. The philosophical is that liberal democratic theory which assumes that citizens must be their own judges of their interest; no one else can better do it for them (Dahl, 1989, p99). But, practically, how the citizens judge true "interest" is apart from their preferences.

For the preferences, G. Bingham Powell (2003) states that democratic responsiveness has involved in a causal chain. According to him, it begins with the citizens’ policy preferences and involves each of the subsequent stages through voting choices, election outcomes, selection of policy makers, policy-making between election and public policies. These policies and their consequences then affect preferences that citizens have for subsequent policies in an on-going dynamic process.

4. Constituent Assembly Election: A Tool for Constitution Drafting

The Interim Constitution, 2007 has a provision for making a new constitution through CA. The CA shall be composed of the following number of members who are elected on the basis of the equality of population, geographically congeniality and specificity and on the basis of the population in Madhes[i], in accordance with the mixed electoral system as provided in the law and who are nominated by the council of ministers (Article 63). As per constitutional provisions, there must be at least 33 per cent women's representation in CA. Two kinds of electoral systems have been adopted for the CA election:

a.   The system in which the one leading in the vote count is elected (First Past the Post System- FPTP).

b.   Proportional electoral process.

One Member One Constituency principle is followed in the First Past the Post System (FPTP). There could be a number of candidates in any election, conducted for any position. But, a voter is allowed to be cast vote in favor of only one candidate. The one, who leads with the maximum number of votes, is declared the winner. There are 240 constituencies throughout the country. 240 CA members were elected by direct vote system.

A proportional election is one where voting takes place for political parties, considering the entire nation a single election constituency. The winning candidate is determined on the basis of the maximum number of votes received by the parties. Such a system is known as proportionate electoral system. The constitution has a provision of electing 335 members by the proportional system. For this system, the political parties must submit a closed list of their election candidates to the Election Commission (EC)[ii]. As per Election to Members of the Constituent Assembly Act, 2064 (2007), there must be 50 per cent women in total. It has made reservations for Madhesis, Dalits (untouchables), oppressed tribes/ indigenous tribes, backward, and others. There must be 50 per cent women's representation in each category. The listed candidates are declared winners, according to the number of votes earned by political parties in the election. In addition to this, 26 members are nominated by the council of ministers on the basis of understanding, from amongst the prominent persons who have rendered outstanding contributions to national life, and indigenous people who could not be represented through the election (Article 63 c).

Among the 74 political parties that had registered themselves with the EC, only 54 actually contested. Nine of the parties secured seats through both systems of election, while 25 parties could have access only to those seats that were allocated for the proportional system. Parties receiving more than 23,512 votes in the proportional system garnered at least one seat in the CA (Election Commission, 2008). In the election, CPN (Maoist) became the largest party winning 225 out of 601 seats. Similarly, Nepali Congress stood as the second largest party with 110 seats in the CA. In the third position, CPN (UML) stood with 103 seats. In CA, Terai[iii] centered parties were in the fourth position. The equation of the CA showed that it had provided considerable space for many small parties to play influential roles in the constitution-making process, a participatory exercise because none of the political parties secured a majority.

Nepali women's representation in the legislative body (Legislature-Parliament), however, was dramatically increased to 32.8% through the CA Election held in 2008. In the election, 189 women leaders (32%) were elected out of 592 in the Legislature Parliament. However, the population of women is near about fifty per cent in Nepal. As a result, Nepal stands on the 14th position globally to send the women leaders to the Legislature Parliament. The reason behind the drastic change in the women's representation is due to the reservation of seats provided through the Interim Constitution of Nepal, 2007.

Table-1: Constituent Assembly Members and Their Representation

Variables   Number Percent (%) Population (%)
Gender Male 403 68 49.9
Female 189 32 50.1
Total N1= 592 100 100 (N2= 22736934)
Caste and ethnicity Brahmin/Chhetri 213 36 31
Ethnic groups 196 33 36
Madhesi 118 20 18
Untouchable 48 8 11
Islam (Muslim) 17 3 4
Total N1=592 100 100 (N2= 22736934)
Ecological Region Himalayan 44 7 7
Hilly 269 45 44
Terai 279 48 49
Total N1=592 100 100 (N2= 22736934)
Development region Eastern Devt. Region 144 24 23
Central Devt. Region 217 37 35
Western Devt. Region 108 18 20
Mid-western Devt. Region 82 14 12
Far Western Devt. Region 41 7 10
Total N1=592 100 100 (N2= 22736934)

Source: CBS, 2001 & www.can.gov.np

From the perspective of caste and ethnicity, even though Brahmin/Chhetri group's population is about 31 per cent of the total population, they secured 36 per cent of the total seats of CA. Similarly; ethnic groups secured 33 per cent of the total seats of CA. Their population was about 36 per cent only. One of the prominent issues was Madhesis'. They also secured 20 per cent of the total seats, which also closely reflected their total population. The untouchable community secured 8 per cent of the total seats of CA despite their total population being 11 per cent. Islam (Muslim) community also won 3 per cent of the total seats as per their population (4 per cent).

From the perspective of ecology of Nepal, fifty per cent of the total population resided in the Mountains and Hills. But, their representation in CA seems to be fifty per cent. On the other hand, the population of Terai is about fifty per cent; and their representation in CA is also fifty per cent. It shows that it is represented ecologically in the proper manner. Likewise, the representation on the basis of regional population also closely resembles with the CA election.

The CA election manifested the decline of the old Kathmandu-centric establishment and the rise of new political forces such as the CPN (Maoist) and other regional parties such as the Madhesi People’s Rights Forum, Nepal, Terai Madhesh Loktantric Party and Nepal Sadbhavana Party and others (Dahal, 2008). The main feature of the CA election is that ethnics, indigenous, women, Madhesi, Dalit and youth groups from periphery came to the fore to seek representation in the mainstream politics. But, authority and decision-making are still personalized by the top leadership.

The CPN (Maoist) commands a relative majority of seats but falls short of the two-thirds majority needed to form a single-party government under the terms of the Interim Constitution. The political necessity of coalition politics requires compromise, the overcoming of sectoral ideologies of the political parties based on class, ethnicity, caste and territorial differences and the development of common programs for power sharing (Dahal, 2008).

Many top leader of Nepali Congress (NC), Communist Party of Nepal (UML), Rastriya Prajatantra Party (RPP), Rastriya Prajatantra Party (Nepal) and Ratriya Janashakti Party (RJP) lost their electoral bid. The defeat of old leaders has provided them an opportunity to democratize the leadership structure, build party structures from the bottom-up, become inclusive of existing social diversity and people-oriented and abolish the spoils and hereditary privileges distributed by the leadership factions to those swirling around them (ibid.).

Whatsoever, the clear message of the CA election is that the constitution should be drafted on the basis of consensus, cooperation and compromise. It should address the ethnicity, indigenous, regional and gender issues.

5. Constituent Assembly

In the context to Nepal, CA is an assembly of 601 people’s representatives elected by the people through CA election 2008. The main objective of the formation of the CA is to prepare the draft constitution and ratify it by addressing the people’s spirits for maintaining the long-term peace in the
country.

To make the constitution-making process systematic and regular, the Constituent Assembly Rules/ Regulation 2008 has contained the provision to form various committees under the CA. As per the provision of the Rules, one Constitutional Committee, ten Thematic Committees and three Procedural Committees have been formed under the CA. The Rules has assigned the thematic committees to prepare the thematic report under the given jurisdiction and has also assigned the constitutional committee to draft the new constitution on the basis of reports submitted by thematic committees. Now, the CA has worked on the basis of the given
authority.

Constitutional Committee has been formed under the Constitutional Assembly Regulation, 2008. The chairperson of this committee is Hon. Nilambar Acharya. There are 63 CA members representing various political parties. The main objective of this committee is to prepare the draft of the constitution on the basis of reports, suggestions and comments received by different thematic and procedural committees. This committee has prepared the conceptual framework of the constitution and preliminary draft of constitution by integrating reports of various thematic committees and feedback from Constituent Assembly.

Thematic Committees: As per the provision of the CA rule, ten thematic committees were formed on 15 December 2008. Each committee was headed by a CA member (Please see Appendix for details).

First, Fundamental Rights and Directive Principles: The main objective of this committee is to identify the fundamental rights and ascertain state’s directive principles and policies. This committee has prepared reports by collecting 91,886 feedbacks. In this way, on the basis of the given mandate, the committee has submitted the draft report including a concept paper on 4 November 2009, and CA has already completed the discussions on the report.

Second, Protection of Fundamental Rights of Minority and Marginalized Communities: The committee has the mandate to collect relevant materials on the subjects and to conduct discussions and studies and prepare a preliminary draft, including a concept paper with technical advice from specialists on the subject under the working areas of the Committee. This committee identified the measures for inclusion of minority and marginalized communities in the system of state affairs. It prepared a report by collecting 51,740 feedbacks and submitted its report to CA.

Third, Restructuring of the State and Distribution of State Powers: The committee has the mandate to determine the federal units and their boundaries and divide legislative, executive and judicial powers among the government in various levels of federal units. It also prepared a report and submitted the draft report including a concept paper on 21 January 2010, and CA has already completed the discussion on the report.

Fourth, Determination of the Form of the Legislative Organs: This committee has the mandate to suggest the structure and methods of formation of the legislature in the various federal units. On the basis of the given mandate, the committee has submitted the draft report including a concept paper on 29 July 2009, and CA has already completed the discussion on the report.

Fifth, Committee on Determination of Form of Governance of the State: The main objective of this committee is to identify nature and outline system of governance including election system. On the basis of the given mandate, the committee has submitted the draft report including a concept paper on 21 January 2010, and CA has already completed the discussion on the report.

Sixth, Committee on Judicial System: The focus of this committee is the format of the judicial structure, tiers, forms and jurisdiction of the judiciary. The committee has also submitted the draft report including a concept paper on September 2, 2009, and CA has already completed the discussion on the report.

Seventh, Committee on Determination of Structure of Constitutional Bodies: The committee has focused on indentifying constitutional bodies required for the operation of the system of governance and determine their forms. On the basis of the given mandate, the committee has submitted the draft report including a concept paper on June 22, 2009, and CA has already completed the discussion on the report.

Eighth, Committee on Division of Natural Resources, Financial Powers and Revenue: The committee has the mandate to identify potential financial resources and measuring criteria for the division of income resource at the various levels of government. On the basis of the given mandate, the committee has submitted the draft report including a concept paper on November 27, 2009, and CA has already completed the discussion on the report.

Ninth, Committee on Determination of Bases for Cultural and Social Solidarity: The committee has the mandate to identify functional language of government and preservation of national languages in the federal units at various levels. The committee has also submitted the draft report including a concept paper on June 17, 2009, and CA has already completed the discussion on the report.

Tenth, Committee on Protection of National Interests: The committee has the mandate to prepare a list of protection of national interests of Nepal and international relation and treaties.

Procedural Committees: Three procedural committees are formed to expedite the constitution drafting. First, Committee on citizen was formed. The mandate given to this committee is to disseminate the information of CA to the citizens, collect opinions of public regarding tthe forthcoming constitution. This committee has formed 40 groups of CA members including secretariat personnel for the collection of public opinion. These groups collected 5,49,763 opinions and suggestions from the public. These opinions and suggestions have been categorized on the basis of the area covered by thematic committees and handed over to them.

Second, the objective of Public Opinion Collection and Coordination Committee is to collect the public opinion after drafting the constitution. But, the draft of constitution has not been made till this date. There are 41 CA members in this committee.

Third, the goal of Capacity Building and Source Management Committee is to build capacity and manage resources to CA members. It has to mobilize the CA members for the purpose of research, interaction, discussion etc. In this committee, there are 37 members under the chairmanship of Mrigendra Singh Yadav.

6. An Evaluation of Constituent Assembly

Article 64 of the Interim Constitution 2007 has explained that the term of CA would be four years after the date of the first meeting of CA was held. Earlier, it was two years. By amending this particular article four times by the political parties in accordance with mutual consensus, CA’s tenure has reached four years. It means the CA should draft the constitution within this period. Now, Supreme Court of Nepal has dictated that the tenure of CA should not be extended beyond May 28, 2012 (Jestha 14, 2069). Therefore, it has put compulsion on writing the constitution. Otherwise, political parties should explore the alternatives. While analyzing the constitution-making process, time factor is also taken for the study purpose.

Table-2: Total time invested in minutes by Constituent Assembly Members in CA

Year Number of meetings Invested time Time per meeting
2008/09(2065BS) 26 1,245 48
2009/10(2066BS) 75 19,958 266
2010/11(2067BS) 7 90 13
2011/12(2068BS) 6 50 8
Total 114 21,343 187

Total days- 1460

Total working days (excluding Saturday and public holidays)= 646

Time invested to discuss the issues of constitution = 33 minutes

Source: Office Records of Legislative-parliament, secretariat, 2012

While evaluating the efforts and focus with respect to time invested in the CA on constitution-making process, it shows that our CA members have not paid much attention. From 2008 to 2012, only 114 meetings were held in the CA. The CA members invested 21, 343 minutes (356 hrs) to discuss the constitutional issues. The rate of time per meeting comes to only 187 minutes (3hr 7 minutes). If we talk about the participation of each CA member, very few members participated in the discussions. In a meeting, only 20 to 30 CA members took part in the discussions. Therefore, the CA members did not discuss much on the issues of the constitution. It raises the question as to who arranges the business of the CA. It means that the CA did not get the business of discussion on the constitutional issues. However, Subash Nembang, Chairman of CA, is satisfied with the role played by lawmakers members in the CA. Our constitution-making process is based on bottom-up approach. Therefore, it is more time-consuming.

In the opinion of Pushpa Kamal Dahal alias Prachanda, Chairman of CPN (Maoist), “during this period, 80 per cent of the constitution making job has finished. It is going to make a draft of the constitution. There were 250 disputes among the political parties. These were narrowed down 20 from 250. This is an encouraging result. In evaluating this period of CA, it has not fulfilled the people’s expectations. “However, it does not mean that the CA members have not worked for the constitution-making process.”

Similarly, Ram Chandra Paudel, leader of the opposition party, NC, opined, “some issues of constitution were finalized. Still, we have to do homework on it. NC always pressurizes on drafting the constitution. Some of contents of the constitution which had already been agreed upon have again surfaced as not agreed upon. This is a unique challenge. The major problem in the constitution-drafting process which has ‘not finalized’ is the peace process i.e. People’s Liberation Army (PLA) integration. The Maoists have not fulfilled the agreements, which were agreed upon by political parties including the Maoists. Maoists want the constitution-drafting process and peace building process to go simultaneously. But, Nepali Congress and CPN (UML) opined that peace building process should complete before constitution drafting. However, the PLA (Maoist combatants) has to be integrated into the Nepali Army within six months of the comprehensive peace accord date as stated in the Interim Constitution 2007 and comprehensive peace accord.

Besides, Jhalanath Khanal, Chairman, CPN (UML), the third largest party said, “our Interim Constitution and the result of CA election have clearly mandated us to move ahead with consensus among the political parties. But, we the major political parties moved ahead on the basis of majority. As a result, we compete for the post of prime minister, not for drafting the constitution. To this date, we have changed four prime ministers after the CA election. This is the main problem for not making the constitution in time”.

Upendra Yadav, Chairman, Madhesi People’s Right Forum, Nepal, regional centric political party also said, “some limited achievements have been made during this period. Still, the issue of state restructuring, governance model and others issues have to be finalized”.

Contrary to the main political parties, Chitra Bahadur KC, Chairman, National Janamorcha argues, “The major reason for not drafting the constitution is the federalism issue. Nepal is a very small country. The country cannot bear the cost of federalism.” In his opinion, CPN (Maoist) does not want to make the constitution. On various other issues, it has posed a hurdle for making and creating consensus. Similarly, Chandra Bahadur Gurung, RPP (Nepal) did not see that the existing CA could draft the constitution. He argued that there must be a referendum to settle the disputed issues of the constitution.

7. Discussion

Through the CA election in 2008, Nepali people elected 601 CA members to draft the constitution. The Interim Constitution, 2007 mandates them with dual responsibilities. The first is the constitution making as the main responsibility. And, the second responsibility is to act as legislative-parliament. Here, the focus is given to the first one. Through the election, the body of CA became more inclusive or representative because all political parties such as CPN (Maoist) established from the 10-year-long conflict (1996-2006), existing parliamentarian political parties, regional parties particularly Madhesies established through the Madhesh Movement-2007[iv], and Panchayati parties were elected by the people for the constitution making purpose. In other words, the CA is more inclusive on the basis of gender, caste and ethnicity, regional and ecology. Its implicit meaning is that elected CA members should make the constitution as desired by the people. This is the preference of the Nepali people. Similarly, as per the provision of Constitutional Assembly Regulation, 2008, it formed ten thematic, three procedural and one constitutional committes. These committees worked by following bottom-up approach. First, they formed 40 groups to collect the opinion of the people throughout the country. Then, they categorised these opinion in accordance to the jurisdiction of the thematic committees. These committees had prepared reports and submitted to CA. In CA, these reports were discussed and sent to the Constitutional Committee for making a draft of the constitution. But, these reports seem only the collection of political parties’ views rather than the public opinion. There were more than 250 disputes in all. Later on, these disputes were narrowed down to 20 through a sub-committee under the Constitutional Committee. The basic disagreements among the political parties were restructuring of the state, judiciary, election and formation of government etc. These issues are the main contents of the constitution, which have not been agreed upon till this date.

In this context, some challenges are observed during the constitution making process. Subash Nemwang argues, “Fluctuation of relationship among the main political parties, indirect effect of legislative-parliament, less priority of political parties to draft the constitution and lack of broad framework for the forthcoming constitution are the main challenges for drafting the constitution.” Similarly, Nilambar Acharya, Chairman of the Constitutional Committee, said that ideology of different political parties, involvement of CA members to form and dissolve governments, instability of government and lack of trust among political parties are other main causes for not drafting the constitution in time.

Besides, the intra-party conflict is also observed as a great challenge. For example, CPN (Maoist) as the largest party has great responsibility. But, it is facing great difficulties within it. Mohan Baidhya faction is not cooperating with the mainstream of the party. They charge the mainstream as reactionary, impoverished and so on. Ultimately, Baidhya faction formed a separate party. Similar cases are also observed in the case of NC (second largest party), CPN (UML) (third largest parties) and so on. Similarly, Madhesi People’s Right Forum, a regional party, split four times. As of now, there are 34 political parties from the original 25 parties because of a number of parties’ splitting. At the time of CA election, there were only 25 parties. Therefore, it has created a divided mentality of the CA members.

Likewise, the issue of Maoist combatant integration into Nepali Army is also observed as another challenge for drafting the constitution. According to Comprehensive Peace Accord, 2005, the Maoist combatants should be integrated within six months, beginning from the signed date. Still, it has not finished. However, some progress has been achieved. The node of difficulty of the peace process is that parliamentarian parties like NC and CPN (UML) opined that the peace process i.e. combatants’ integration should be finished and arms should be handed over to the government at first on one hand. On the other hand, CPN (Maoist) argued that the peace process and constitution-making process should go simultaneously. None of the work has been finalized yet.

8. Conclusion

The study revealed that Nepal adopted inductive approach to draft the new constitution. For this, 601 Constituent Assembly members were elected through the CA election in 2008. Forty groups were formed to collect public opinions from all the constituencies. Near about five hundred thousand suggestions were collected. These suggestions were categorized on the basis of area coverage by thematic committees formed by CA. Eventually, each thematic committee prepared its report and sent them to the CA via Constitutional Committee. These reports were discussed in the CA. On the basis of reports and suggestion given by CA members, the Constitutional Committee prepared the preliminary draft of the constitution along with agreed and contentious articles of the constitution. To forge consensus on contentious issues, a sub-committee under the chairmanship of Prachanda (leader of main political party i.e. Unified Nepal Communist Party-Maoist) was formed under the Constitutional Committee. This committee narrowed down the constitutional disputes from 250 to 20. Basically, these disputes were related to forms of government, judiciary, elections and structure of federalism. The study revealed that CA members did not pay much attention to drafting the constitution by focusing on the abovementioned disputes. They began the discussions only on the minor issues, which might be similar to that in other countries. At the last moment, they entered into the main issues of the constitution. The election result mandated them to draft the constitution on the basis of consensus. None of the political parties had gained majority or two-thirds majority in the CA. Even though the CA election 2008 mandated the political parties to draft the constitution on the basis of ‘consensus, cooperation and compromise’, the political parties are instinctively focused on their ideology rather than the public opinion. All the parties put first priority to political gains rather than the constitution-drafting task. Each political party has been blaming the other parties for not drafting the constitution. Therefore, the major challenges posed in drafting the constitution are different ideologies of political parties, inter or intra-party conflict, instability of the government, and lingering Maoist combatants’ integration into the Nepali Army.

Annex 1: Thematic Committees of CA

Name of Committee Main focus areas Feedback received Head/ No of CA Members
Constitutional Committee To make draft of constitution on the basis of report submitted by various committee 27,137 Hon. Nilamber Acharya (63)
Committee on Fundamental Rights and Directive Principles To identify the fundamental right and ascertain state's directive principles and policies 91,886 Hon. Binda Pandey (42)
Committee on the Protection of the Rights of Minorities and Marginalized Communities Measures for inclusion of minority and marginalized communities in the system of state affairs 51,740 Hon. Lalbabu Pandit (39)
Committee on State Restructuring and Distribution of State Power To determine the federal units and their boundaries

To divide legislative, executive and judicial powers among the government in various levels of federal units

60,930 Hon. Lokendra Bista Magar (42)
Committee on determining the structure of legislative body Structure and methods of formation of the legislature in the various federal units. 38,092 Hon. Ramesh Rijal (41)
Committee for Determining the form of the Government Nature and outlines of system of governance

Election system

57,523 Hon. Shanbhu Hajar Dusadh (33)
Judicial System Committee Format of the judicial structure

Tiers, forms and jurisdiction of judiciary

49,294 Hon. Prabhu Shah (41)
Committee for Determining the Structure of Constitutional Bodies Identification of Constitutional bodies required for operation of the system of governance and determination of their forms 39,776 Hon. Govinda Chaudhari (42)
Committee on Natural Resources, Financial Rights and Revenue Sharing Division of subject-matters of financial sources. Measuring criteria for the division of income sources. Financial relationships between governments at various levels. 38,664 Hon. Amrita Thapamagar (42)
Committee for Determining the base of Cultural and Social Solidarity The functional government languages and preservation of national language in the federal units of various levels. 36,300 Hon. Nabodita Chaudhari (39)
National Interest Preservation Committee Identification and constitutional protection of national interests of Nepal.

International relations & treaties

58,421 Hon. Amik Sherchan (42)
Total   549,763  

Source: Constitutional Activities, 2068, pp26-36. & www.can.gov.np

Annex 2: Procedural Committee

Name of Committee Objectives Feedback received No. of CA members and head
Committee on Citizen To disseminate the information CA to citizen - Hon. Mina Pandey (36)
Public Opinion Collection and Coordination Committee Collecting public opinion and suggestion on constitution draft - Hon. Pramod Pd. Gupta (41)
Capacity Building and Source Management Committee Conduct interaction program and research in the content of constitution - Hon. Mrigendra Singh Yadav (37)

Source: Constitutional Activities, 2068, pp26-36. & www.can.gov.np

[i] Nepal’s low land, which is plain area, is located in southern part of Nepal.

[ii] Election Commission is constitutional body in Nepal

[iii] Ecologically, Nepal can be divided into three belts such as Mountain, Hill and Terai.

[iv] Short after People’s Movement-II, Madhesh Movement, 2007 started and it established the issues of Madhesh.