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Nepal: Spirit of Constitution on progressive restructuring of states :: By Binit Kumar Jha


The main agenda of Jana Andolan-2 and Madhesh Aandolan about restructuring of the State was based on equality and the elimination of all forms of discrimination; fair, equal and effective representation in State institutions; secure citizenship; secular State; constitutional recognition of the diversity of cultures and languages; and self government through a federal type of autonomy established on language and ethnicity.

The Interim Constitution of Nepal, 2063 [2007] that followed is a consensus document among the political parties in accordance to Jana Andolan-2 and Madhesh Aandolan. It has given a blueprint and an outline of the future constitution. A formula has been set in the Nepal’s Interim Constitution about the progressive restructuring and power distribution of the state.

Thus, while discussing about restructuring of the state, the members of the Constituent Assembly should study and think about the constitutional provisions, which has provided the necessary blueprint. These principles are mentioned in the Preamble and in Article 138 and it is incumbent on the government to follow the principles already laid down.

Provisions Relating to Restructuring of the State:

1. The most important principle is a Restructuring of the State which appears in several places in the Interim Constitution. In the second paragraph of the preamble of the Interim Constitution of Nepal, 2063 [2007], mention is made of “Pledging to accomplish the progressive restructuring of the State in order to solve the problems existing in the country relating to class, ethnicity, region and gender;” . This is a binding commitment. The Preamble reflects the spirit of the Constitution. Hence, the key principle of the constitution should be progressive restructuring of the State. The word “Pledging”, has not been used casually- It has been used with all seriousness, inevitability and a necessary requirement for progressive state restructuring.

Article 33 (d) of the directive principles of the Interim Constitution the states, “Inclusive, democratic and progressive restructuring of the State by eliminating its existing form of centralized and unitary structure in order to address the problems relating to women, Dalits, indigenous tribes (Adivasi, Janagati), Madheshi, oppressed and minority communities and other disadvantaged groups, by eliminating class, caste, language, gender, cultural, religious and regional discrimination.”

This provision of the Interim Constitution signifies a crystal clear vision on the future constitution and cannot be ignored by the makers of the new constitution

2.Article 138 (1) of the Interim Constitution, states that “There shall be made progressive restructuring of the State with inclusive, democratic federal system of governance, by doing away with the centralized and unitary structure of the State so as to end discriminations based on class, caste, language, gender, culture, religion and region.”

This provision of the Constitution has once again clearly expressed that the existing centralized and unitary structure is an obstacle and the need to demolish the discriminations based on class, caste, language, gender, culture, religion and region. The message is again very clear- that the future structure would have to be an inclusive, democratic federal setup.

3. The answer to whom and why the progressive restructuring of State should concern, is in, Article 138 (1a) of the Constitution which states: “Recognizing the desire of the indigenous peoples and of the people of backward and other area including Madheshi people towards autonomous provinces Nepal shall be a federal democratic republican state. Provinces shall be autonomous and vested with full authority. The boundaries, number, names and structures, as well as full details of the lists, of autonomous provinces and the center and allocation of means, resources and powers shall be determined by the Constituent Assembly, while maintaining the sovereignty, unity and integrity of Nepal.”

As stated in the constitution itself, the need for federal restructuring was to set right that imbalance and make it “inclusive” and explicit for the Madhesi, tribal, ethnic, disadvantageous citizens of other areas. It also states very clearly that these communities’ desires and demands of an autonomous State must be addressed by the constitutional process. It is also implied that the States won’t be just exist for the sake of the name but will be truly autonomous with full authority.

Restructuring cannot therefore be done without taking into account the interests of those citizens who have till now been ignored by the government and an opportunity has thus been given to such people to upgrade and develop their region without interference.

4. According to Article 138 (2) of the Constitution “There shall be constituted a high level commission to make suggestions on the restructuring of the State. The composition, function, duty, power and condition of service of such commission shall be as determined by the Government of Nepal”.

According to this provision, during the first Constituent Assembly, a high-level State Restructuring Commission was formed by the government. This commission advised for 10 provinces. The then Congress and UML representatives, a minority in the commission, wrote a note of dissent against the proposal and presented a blueprint of 6 provinces based on capability. Capability of what? One does not know.

5. Article 138 (3) of the Interim Constitution of Nepal states that “The final settlement on the matters relating to the restructuring of the State and its form of federal governance system shall be as determined by the Constituent Assembly”.

It is therefore obligatory for the constitution makers to deeply consider the import of the articles cited in the interim constitution as also the reasons why these provisions were made after the Jana Andolan II and the Madhesi Aandolan.

The major parties representing Constituent Assembly, Nepali Congress, UML and UCPN (Maoist), cannot ignore and instead crystallize the spirit and desires of Madheshi, indigenous, tribal, backwards and people belonging to different areas and regions.

The new constitution cannot be for the benefit of any particular community. In the new federal constitution of the government the governance and justice systems must provide all Nepalese citizens equal service and facilities, and to uplift peoples’ life standard, end discrimination. This involves equal participation in the governance system and equal justice. This is the hope and demand of the majority.

Narrow Vision of Law Makers:

With narrow-minds and selfish thought, a progressive constitution cannot be imagined. A constitution is compiled of manifesto, national symbol, set of values, a vision, a country’s supreme law, to which other laws and policies, must blend. The legal part deals with the rights and obligations, the structure and powers of the State, relations between the precise and clear; for otherwise there will be disputes about the meaning of the text and will be hard to implement. A constitution formed with a narrow-minded and selfish mentality can turn into “Visavrikcha” (Poisonous tree).

A new Constitution should be such that the people of Nepal from all corners- people from Mountains, Hills and Madheshh have a sense of ownership towards it. The vision of the country is described by its constitution. It is vital therefore for the minorities to observe, how they are represented in the Nation and State. The 1990 constitution represented a vision of Nepal which denied the culture and religion of many communities and alienated them from, at least, the state. Hence, the new constitution must include a broader vision, inclusive of its diverse communities and, in moral perspective, driven by the imperative of social justice.

Located between two Giants, Nepal Needs Stability to develop:

In the current global scenario, the two neighboring countries, India and China are moving fast. On one hand, India is the world’s largest democratic country and developing its economy rapidly. It is trying to get well established place in the world’s economy. For millennia, it has social, cultural and religious relations with Nepal. Similarly, we have China, with the world’s largest population and second in the world’s economy. Situated between these two powerful nations, Nepal needs to establish “Stable Political System” as soon as possible. Hence, the top leaders of the political parties and CA members should complete the process of making of the new constitution with consensus on time, to work on uplifting and improving the living standards of Nepalese thus creating employment for youth to stop them from going abroad, rather than concentrating on their personal and parties’ benefits.

Under the leadership of Pandit Jawahar Lal Nehru, Sardar Vallabhbhai Patel, Dr. Bhimrao Ambedkar the Constitution of India was written. Ambedkar was the Chairman of the India’s Constitution Drafting Committee. On the early morning of 15th August, 2014, from The Red Fort, Indian Prime Minister Narendra Modi saluted the constitution architect, for making an inclusive constitution because of which a person like him, born and raised in a normal Indian family was able to be elected as a Prime Minister of the world’s largest democratic country.

Due to Constitution makers’ vision and knowledge, in a population of around 1.15 billion, a normal citizen who is born and raised in a family with modest means, could dream and become the Prime Minister of India. This is the remarkable quality of democracy. In a similar way Nepalese Constitution maker should show their vision, knowledge and honesty. The Nepalese people and the future generations also want to salute the Constitution makers.

We must get inspired by democratic India. And we must learn.

Conclusion:

Thus the Constitution maker should make “Sarvajan Hitaya Sarvajan Sukhya” constitution, which means that the constitution should reflect the interests of around 27.5 million Nepalese. This is a serious responsibility.

The people have given a huge responsibility to the second Constituent Assembly members. Each member must show his/her skills and complete this historic responsibility. What is needed is vision for future well being of the communities as a whole- inclusive with equal opportunities.

(The writer is an advocate of the Supreme Court of Nepal.)

 

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Information for Indian tourists travelling by land:- 72 hours (-) C-19 report, CCMC form and Antigen Test at entry point
Information for Indian tourists travelling by land:- 72 hours (-) C-19 report, CCMC form and Antigen Test at entry point
Information for Indian tourists travelling by land:- 72 hours (-) C-19 report, CCMC form and Antigen Test at entry point