Nepal parties defy SC order, push through draft constitution

  • Prashant Jha, Hindustan Times, New Delhi
  • Updated: Jun 26, 2015 15:56 IST

Recognising that sovereignty lies with the people, Nepal's draft constitution has said that the country will be a Federal Democratic Republic. But it has not laid out the boundaries of the federal provinces, defying an order of the country's Supreme Court.

HT has exclusive access to the text of the draft constitution, which is not yet in public domain in Nepal. The draft was prepared on the basis of a 16 point pact between ruling parties in Nepal with the opposition Maoist party and a Tarai based outfit. But this was riddled with controversy as Tarai based political parties and politically underrepresented social groups objected to the postponement of the issue of federal restructuring. The Supreme Court stepped in to issue an interim order and said the constitution must demarcate federal boundaries. But the bigger political forces slammed the judiciary's move and went ahead with the draft.

Read: Ignoring Indian advice, Nepal plunges into political crisis

In the preamble, the draft says Nepal will adopt a multiparty competitive democratic system; a proportional and inclusive governance system; it will respect individual freedom, fundamental rights, human rights, and press freedom; have adult franchise and periodic elections; an independent, neutral and capable judiciary and rule of law; and prepare the basis for 'socialism' by incorporating other democratic principles.

The preamble, however, does not mention the word 'secularism'; the word however appears later in the text in Part 1 of the constitution which defines the Nepali state. The state will, according to Article 4, be independent, indivisible, sovereign, secular, inclusive, oriented to democratic socialism, republican, and multi-ethnic. The Nepali nation, according to Article 3, is multi ethnic, multi lingual, multi religious, multi cultural, and geographically diverse.

Two issues have been the most contentious in recent times - women's groups have launched a movement against discriminatory citizenship provisions, while federalists have asked for a specific federal design.

On federalism, Article 60 of the draft constitution dealing with the nature of the state says Nepal would have three layers of government - federal, provincial and local. There will be 8 provinces, the boundaries of which will be determined by a federal commission to be set up by the government whose term will be six months. The recommendations of the commission will come to the Legislature-Parliament, which can decide on boundaries by a two thirds majority. Provincial assemblies will determine the names of states. Provinces are however empowered to set up their own commissions to determine the structure of local bodies and create special units.

It is this section which will be the most controversial for the SC, in its interim order, categorically stated that as per Article 138 of the interim constitution, it is the CA's task to finalise the name, boundaries and number of provinces. There is already a contempt petition against the parties for defying the order.

On citizenship, under Part 2 of the draft, Article 12 says that those whose father and mother (I.e both parents) are both Nepali citizens are eligible for citizenship by descent. Women's groups, with wide support from civil society, had launched a campaign for citizenship through mothers - and had argued the provision should be that children whose father or mother were Nepali citizens can get citizenship. This has not been accepted. But responding to concerns that this will leave many whose parents are not known stateless, sub clause 2 and 3 of Article 12 says that those whose parents cannot be located, or whose father is not known, can get citizenship.

On naturalised citizenship, foreign women married to Nepali men can get immediate citizenship while foreign men married to Nepali women have to wait 15 years to get citizenship. This is a critical clause especially because of the magnitude of cross border marriages between Nepal and India. Women's activists have objected to the inequality in naturalisation clause. The draft tries to partially cushion the implication of this for children by adding a clause - children of such marriages, if born in Nepal and permanently residing in Nepal, as long as they have not taken citizenship of a foreign country are eligible for naturalised citizenship.

Nepal will have a parliamentary system. The upper house will have 45 members (5 each from the 8 states and 5 nominated from the cabinet). The lower house will have 275 seats - 165 will be elected on the first past the post system and seats and 110 on the basis of Proportional Representation. The draft says that 165 constituencies will be determined on the basis of geography and population, sparking concerns from Tarai groups who fear that Tarai where there is over 50 percent of the population will end up under-represented. They have also expressed concerns that constitutionally mandated bodies like the human rights commission, which were supposed to be inclusive as laid out by interim constitution, do not have binding inclusion clauses.


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