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A glimpse into the preamble of Nepali constitution

Nepal is in the final lap of writing its constitution. Late on Tuesday night, the draft of the statute was tabled in the Constituent Assembly. The draft has the support of four major political parties,

world Updated: Jul 01, 2015 20:30 IST
Prashant Jha

Nepal is in the final lap of writing its constitution. Late on Tuesday night, the draft of the statute was tabled in the Constituent Assembly. The draft has the support of four major political parties, but has drawn criticism for postponing the issue of federal restructuring, reversing achievements of political inclusion, being deeply gender-insensitive and instituting regressive citizenship laws.

HT was the first media outlet to break the story about the contents of the draft constitution last Friday, which has now become public. Below is a rough translation of the preamble of the constitution – which is longer than even the Indian constitutional preamble – with a note on the significance of the various phrases, and the glaring omissions. The preamble also gives us a glimpse into Nepal’s recent political history.

‘We, the sovereign Nepali people’

Significance: Unequivocal affirmation that sovereignty is with the people. The backdrop to this is the constant tussle between monarchy and democracy. The premise of the autocratic monarchy rested on the fact that sovereignty resided in the palace. The 2006 People’s Movement resolved this dilemma, and people reclaimed sovereignty.

‘Keeping unchangeable Nepal’s independence, sovereignty, geographic integrity, national unity, freedom and self-respect and internalizing the sovereign rights, autonomy, and right to self rule of the people’

Significance: The emphasis on the state’s sovereignty and independence is a staple part of the constitutions of most countries across the world. Nepal, sandwiched between India and China, has often been insecure about its own independence and autonomy – it has particularly felt threatened by what sections of the political elite see as ‘Indian expansionism’ and the rise in ethnic and regional aspirations. The importance given to state’s sovereignty, unity and integrity (to reiterate, this is normal by any standards of constitutionalism) should be seen in this backdrop. But it is noteworthy that this is coupled with the rights of the Nepali people, including the right to self-rule. This is a nod to the democratic struggles that have happened in Nepal over the last sixty years.

‘Remembering the proud history of the historic people’s movement, armed struggle and sacrifice of Nepali people repeatedly for national interest, democracy and progressive change; and respecting the martyrs, disappeared and victims’

Significance: This is an acknowledgment that the political transformation and the new constitution through the Constituent Assembly is a product of a deep aspiration for democracy, spanning almost seven decades. It is also an acknowledgment of the fact that political movements for change have been both non violent (like the 1990 movement and 2006 movements) and violent (the anti-Rana struggle of the Nepali Congress in the 1950-51 period, the underground activities of both NC and communists during the Panchayat period, and the Maoist ‘People’s War’ between 1996 and 2006. In this, the constitution-drafters have stayed away from the philosophical debate of whether violence is desirable or not and instead chosen to recognise that violence has been a part of the political churning. And it is an acknowledgment that thousands of people have died, and their families have suffered in this process. There has been no justice, but there is recognition of the loss.

‘Ending the discrimination and oppression emerging from the feudal, autocratic, centralised, unitary state structure’

Significance: A key feature of the Nepali democratic, revolutionary and ethnic movements has been its opposition to the existing state structure. Under the monarch, this state system was feudal – there was also a wide aristocratic web that controlled the levers of power. Be it under the king or the Rana family rule for over 100 years, or when the kings decided to trample on democracy, it was autocratic. The Nepali state, ever since it came into being, been centralised and unitary with authority emanating from pockets of the Kathmandu valley; the caste system and its hierarchy was entrenched in legal code; a tiny Hindu male caste elite has been dominant in this structure. The preamble recognises that all of this resulted in structural discrimination. This is rare, for constitutions often look ahead without examining the state’s past infirmities. But there is a key critique that has emerged from women’s groups of this provision. The phrase omits the term ‘patriarchal’, which has been another characteristic of the Nepali state.

‘Protecting and promoting unity in diversity, socio-cultural solidarity, tolerance and harmony, while internalising the special multi-ethnic, multi-lingual, multi-religious, multi-cultural and geographic diversity; Envisioning an equitable society based on principles of proportionate inclusion and participation to guarantee economic equality, prosperity and social justice, while ending class, ethnic, regional, linguistic, religious, gender, and all forms of caste-based untouchability’

Significance: Nepal’s staggering diversity often comes as a surprise to outsiders, but is now a key element of the country’s politics. While the constitution of 1990 did nod at this diversity, politics has come a long way since. Activists in an open society, Maoist mobilisation during the war, and then regional and ethnic movements especially in the Tarai contributed to a new narrative – how members of tiny Hindu hill upper-caste elite had monopolised the state structure. There was a push for recognition of diversity, and for distribution of political power in accordance with this diversity. But this strain of Nepali politics clashed with another, more conservative strain, which emphasised the principles of unity over diversity, homogeneity over heterogeneity, and uniformity and assimilation. The preamble seeks to accommodate both views – by conceding diversity along various parameters, but also prioritizing the need for ‘harmony’ and solidarity.

‘Committing to create a basis for socialism by adopting people’s competitive multiparty democratic system, individual freedom, fundamental rights, human rights, adult franchise, periodic elections, press freedom, independent, impartial and capable judiciary and rule of law, and other democratic values and principles’

Significance: Given that all major political forces, in rhetoric even if not in practice, subscribe to either democratic socialism either as the end goal or as a step towards a communist system has resulted in socialism being declared the principal objective. This, however, will have limited implications on the ground. Nepal will be a democracy with fundamental rights; it will be a step ahead than even India by incorporating principles like human rights and press freedom as a part of the preamble. The older political parties like Nepali Congress were keen to add parliamentary system into the preamble, but the Maoists – who have accepted the parliamentary form of government with reservations – vetoed it. The more significant omission is however that of two other terms, ‘secularism’ and ‘federalism’ in this paragraph. Nepal transitioned from being a Hindu kingdom to a secular state in 2006; the current draft has not changed the status, despite demands that this term be dropped. But its non inclusion in the preamble is striking.

‘To fulfill the aspirations for long-term peace, good governance, prosperity and prosperity through a federal democratic republican form of government, announce the promulgation of this constitution through the Constituent Assembly’

Significance: Ever since 1951, there has been a promise that the constitution be drafted by an elected Constituent Assembly. This promise is about to be met. The categorical commitment that Nepal will be a Federal Democratic Republic will be reassuring for all those who participated in the People’s Movement of 2006 and the Madhes Movement in the country’s southern plains in 2007. It will also mark the end of the hopes of former king Gyanendra and his supporters that monarchy could be revived.

But the fact that the constitution does not lay out the federal structure – a key task assigned to the CA under the interim constitution – will probably rank as a major drawback. It has already sparked off protests; copies of the draft have been burnt on Kathmandu streets; and it would be a mistake to under-estimate this dissent. The fact that the spirit of the preamble is not followed up in the text on many counts – for instance the recognition that there has been structural discrimination in the past is not coupled with strong specific measures to correct these injustices – is also a weakness. There is now a short time-frame to correct the flaws, accommodate dissenting forces, and draft a more progressive constitution before it is promulgated. Whether Nepal’s ruling political establishment has the intent to do so is however not certain.