[Constitution special] The evolution of Nepal's constitutionThe constitution of 1990 was regarded as the best one Nepal had had until then, but it did not last a long time
A new era will dawn in Nepal today when the long-awaited constitution is promulgated by President Ram Baran Yadav.
The new constitution is the sixth constitution after the establishment of democracy in 1950. All the previous constitutions were prepared by the monarchy or a select committee. That makes this constitution markedly different from the rest—it was created by the people's elected representatives.
The Nepali people have waited for this day for a long time. It was in 1949 that a Nepali Congress party manifesto first announced that an elected council would draft a new constitution. In 1950, King Tribhuvan gave a speech in which he made a reference to an elected assembly's drafting a new constitution. In 1951, an interim constitution was promulgated with the purpose of drafting a new constitution through an elected body, but the political milieu changed soon after.
In 1956, Prime Minister Tanka Prasad Acharya sabotaged the CA agenda, saying that the monarchy would deliver the new constitution. The constitutions of 1959 and 1962 were thus created by the monarchy.
In 1990, after more than 30 years of Panchayat rule, political parties promulgated a new constitution. Although the document was drafted by a commission, saw the input of various political actors and had a democratic spirit, it was still influenced by the monarchy.
The 1990 constitution was the product of a compromise among the Nepali Congress, the left forces and the monarchy. At that time, some left parties demanded that a new constitution be created by a CA, but they did not wield enough influence and the CA agenda was left pending.
The constitution of 1990 was regarded as the best one Nepal had had until then, but it did not last a long time. Six years after it was promulgated, the Maoist party began their insurgency, which ultimately led to the CA of today.
Before the launched the insurgency 1996, in a 40-point charter of demands submitted to the then Prime Minister Sher Bahadur Deuba, the leader of the then Janamoarcha, Baburam Bhattarai, had mentioned that a new constitution needed to be promulgated through an elected body.
The Maoists intention was not to draft a democratic constitution, but a "people's constitution." In talks with the governments that were led by Sher Bahadur Deuba, Lokendra Bahadur Chand and Surya Bahadur Thapa, between 2001 to 2004, the then CPN(Maoist), which was later renamed as UCPN(Maoist), demanded a CA election.
In 2005, the historic 12-point understanding was signed between then Seven Party Alliance and the CPN-Maoist, which laid the ground for the election of the CA, and that deal was further cemented by the Comprehensive Peace Agreement (CPA) in 2006. The 12-point understanding and CPA laid the principles of new constitution. Those documents vowed to end all types of discrimination through the "progressive restructuring of the state."
The Interim Constitution of 2007 formally cemented the agenda of CA elections. Although the parties agreed to draft a new constitution, creating a new constitution from the CA proved to be an exceedingly difficult task.
It took nearly two years to hold the CA election after the inception of the CPA, because the date of first CA election was postponed several times.
But in 2012, the first CA was terminated following a Supreme Court verdict that created a political as well as a constitutional crisis.
The parties, however, reached an agreement that they would continue their attempts to draft a new constitution through the CA. They agreed to form a government led by the Chief Justice for the purpose of holding a second CA election after they failed to form an all-party government.
After the first CA was dissolved in 2012 without a new constitution, there were fears that the course the nation took between 1950 and 1962 might get repeated and the constitution through a CA would be sabotaged. In those intervening years the agenda of a democractic constitution through an elected body was put in back burner In November 13, 2013, the second CA was elected to draft the new constitution—which it did in 21 months.
The new CA uprooted some key principles and structures institutionalised by the previous constitutions. The Constitution of Nepal 1962 had formally recognised Nepal as monarchical Hindu state, a definition that was included in the 1990 constitution. The new constitution has established Nepal as a secular state, a definition that was first included by the reinstated parliament in 2007. The earlier constitutions had entrenched the centralised and unitary nature of the state, which has been seen as one of the main reasons for country's under development. The new constitution has divided the country into seven provinces, a setup that will help devolve power from the centre to the grassroots. And the formation of central, provincial and local legislatures guarantees local-level democracy.
According to the major parties, the new constitution has ensured the rights of women, Dalits, Janajatis and other marginalised communities, and the principles of proportional and inclusive representation have been ensured. However, some observers say that there are still grievances from these communities that have not been properly addressed in the new constitution. The chairman of the Constitution Drafting Committee, Krishna Prasad Sitaula, however, claims the rights of these communities have been addressed and that the remaining concerns will be addressed in the coming days.
The new constitution's preamble says that it seeks to end all forms of discrimination and oppression. The 240-year-long monarchical regime has formally been abolished and been replaced by the President elected by the people.
Many leaders say that the new constitution is a constitution belonging to all and a constitution belonging to no one as well. That is because the major parties came to a compromise by abandoning their party positions in order to promulgate the new constitution.
There is still much work that needs to be done. For one, while the new constitution marks the end of the peace process, some of the process's vital issues have not been resolved. The Truth and Reconciliation Commission has just begun its tasks and no one is sure whether Nepal's war-era victims will get justice. The issue of scientific land reform, as mentioned in CPA, has not been properly implemented and the democratisation of the Nepal Army, as mentioned in the CPA, remains unsettled.
Still, according to the chairman of the Constituent Assembly, Subas Nembang the constitution has been able to achieve the people's goals of instituting republicanism, secularism and inclusion.