The deadline for promulgation of constitution of republic of Nepal is May 28, 2010. It is certain that we will miss the deadline and the reasons for this should be explored and explained.
The interim constitution of Nepal promulgated in January 2007 envisions inclusive, democratic, secular, federal and “forward looking” system for restructuring the country. To achieve this end, it has a provision for a High-Level State Restructuring Commission (HLSRC) for making recommendations to the Constituent Assembly (CA). It not only has the authority to decide on the numbers of states and their names, but also their boundaries. Moreover, it has the authority to decide the rights of both center and federal units.
However, instead of forming a state restructuring committee, the government in November 2008 delegated the task to one of CA’s eleven thematic committees, Restructuring of State and Power Sharing Committee (RSPSC). The government appointed body would have included geographers, historians and social scientists and others having constitutional expertise in this respect would have given advice to RSPSC.
Although RSPSC includes a geographer, a non-partisan body like high-level committee would have perhaps given impartial advice to CA. It is a matter of conjecture if such advice would have been similar to fourteen-state model given by RSPSC few weeks ago. However the CA committee would have been able to discuss a restructuring plan prepared by experts and deliberate on it. Since RSPSC’s report is lacking in experts’ inputs, it will be difficult to have it approved by the constituent assembly.
The delay in promulgating the constitution is primarily due to the failure to establish High-Level State Restructuring Commission on time. All parties are responsible for the delay, including the Maoists.
The first amendment of interim constitution was made in March 2007 which included the provision for formation of HLSRC, a year before the CA elections. As the then government headed by Girija Prasad Koirala did not take any initiative to form a high-level commission, a writ petition for a mandamus was filed in Supreme Court (SC) on November 2007. The co-respondents included the prime minister. However the then Chief Justice Kedar Prasad Giri dismissed the writ petition on the grounds that SC should not be involved in deciding disputes of political nature. The court also ruled that petitioners did not have meaningful relation or substantial interest in the case.
The interim constitution was amended for the fifth time in July 2008, two months after the CA elections. The amendment declared Nepal to be a federal republic and stated that CA would prepare boundaries, numbers, distribution of resources as well as rights of center and constituent units.
However, between July 2008 and April 2010, the governments headed by Nepali Congress (NC) and CPN (UML) took no initiatives whatsoever to form the HLSRC. Although, Maoists appointed Ganesh Bahadur Gurung as chairman of the HLSRC but NC and CPN (UML) did not support the move. Instead the political parties represented in CA delegated the responsibility to RSPSC, one of CA’s 11 thematic committee, which is affected by partisan interests. And its recommendation of a 14-state model has become quite controversial.
In March 2010, newspapers revealed that all political parties are now in favor of forming HLSRC. Although the Maoists also supported the formation of such high-level commission, they have argued that the commission should only work to fine-tune the 14-state model of the state restructuring committee. It may be recalled that the Maoists have already declared ethnic federal states bypassing the CA.
The delay in promulgating the constitution is primarily due to the failure to establish HLSRC on time. All parties are responsible for the delay, including the Maoists. In fact, it is the Maoists who bypassed the CA and unilaterally declared ethnic states, and are now reluctant to give full authority to HLSRC. Ironically, one of the most important issues to be decided by CA on state restructuring remains unresolved because of political parties’ attitude.
Maoist leader Pushpa Kamal Dahal has recently stated that there was no consensus between the three major parties on naming and delineation of boundaries of federal states. He further stated that NC and CPN (UML) are yet to understand the peoples’ aspirations on federalism. It appears that the Maoists’ intention to impose their model of federalism is the major obstacle behind the delay in promulgation of constitution by May 28.
It is difficult to understand how a party that fought successfully for interim constitution and CA elections did not form HLSRC when it was in power. What’s more surprising is how it unilaterally delineated states on the basis of ethnicity from the streets without getting the approval of the CA, and in the absence of HLSRC. Therefore, the major culprits in delaying the formation of HLSRC are thus the former Chief Justice Kedar Prasad Giri who dismissed the writ petition filed against the government pressuring it to form the HLSRC, and CPN (UML) and NC who did nothing to form the commission when they were in power and finally the Maoists who declared the states on their own showing total disregard to CA.