Contents for the second amendment are detrimental for the nation

Dr. Bhimarjun Acharya

Constitution Expert

As the country marks the second anniversary of the promulgation of the federal constitution, there is still dissatisfaction over some of the provisions. With the successful holding of the local elections in three phases, the most important step towards the implementing the constitution has been completed. Against this backdrop, Modnath Dhakal of The Rising Nepal talked to constitution expert Dr. Bhimarjun Acharya, who has made immense contributions in the field of rule of law, democracy and justice through his writings, analysis, advocacy and lobbying. Excerpts:

It's been said that we have written the best constitution. What makes it a good one?

There are numerous good elements in Nepal's constitution, but from my point of view, there are five core objectives - justice, equality, prosperity, stability and inclusion. These elements are mentioned in the Preamble of the constitution.  It has other fundamental features also. First is the citizenship provision, which comes with gender balance, no discrimination on the basis of gender. A child can now obtain citizenship from the name of his/her father or mother. Such elements did not exist in the earlier constitutions. As rumoured, no provision discriminates any Nepali on geographical or racial grounds. There is also no discrimination when providing naturalised citizenship. Non-Residential Citizenship for the Non-Resident Nepalis is another thing the constitution has.

The second is fundamental rights. There are 31 fundamental rights in the statute. No constitution before had offered so many rights. The right to dignity, social justice and social security are new concepts in the case of Nepal. Third, our constitution is inclusive. Appointments in all the constitutional bodies and government agencies will be inclusive. Constitutional commissions for the marginalised communities, such as the dalits, Madhesis and Muslims create ownership of the constitution. Fifth is the amendment provision. Except some issues such as sovereignty and territorial integrity, everything is amendable.

And federalism?

Federalism is the biggest weakness of the constitution. Republicanism, federalism and secularism are the three pillars of modern Nepal. We have already implemented two of the three – republicanism and secularism - and there are prospects to develop them further. But, implementation of federalism in Nepal will not be possible. So if the present constitution fails in the future, it will be because of the very provision of federalism.

Though many people take it as a major strength of the constitution, I think it's the biggest challenge to the statute, the biggest risk factor and weakness. It might the only factor to disturb the longevity of the constitution. You need not wait long to see the disturbances, after the elections at all levels are completed. In order to manage hundreds of parliamentarians and ministers, you need to mobilise huge amounts of resources.

What is the status of constitution implementation?

Election to the local bodies was the biggest achievement towards implementing the constitution. The elections were necessary for the country because it was running without elected representatives in the local bodies. The vacuum has been filled. Other positive elements are the formation of high courts and enactment of the necessary laws for the federal system. At the same time, some natural progress has also been made.

What is the politics behind the constitution amendment?

It began with the promulgation of the constitution. When the constitution was being finalised and promulgated, there was some negligence. It is thus the result of that. It was unfortunate that a situation was created where the Madhesi parties boycotted. We could have postponed the date of promulgating the constitution, and I am sure that even if it was delayed by a couple of weeks, the statute would have come with the same content. That dissatisfaction grew manifold in the later days, and an amendment agenda was proposed which was against the national interest.

At the same time, there are many defects in the constitution. There is no consistency in the language and harmonisation in the concepts. Federalism is mentioned as a coordinative or cooperative, which are completely different concepts. But the contents proposed for the second amendment of the constitution are detrimental to the nation. It will not benefit the Madhesi people and the leaders, too.

The major political forces that stood together while promulgating the federal constitution – CPN-UML and Nepali Congress – are moving in opposite directions in terms of amendment. Why?

Such things keep happening in politics. As the announcement of the federal constitution had tremendous political significance, every political party became a partner in it whether willingly or unwillingly. Therefore, the statute was passed by a super majority. I think that the major parties had stood together to take credit of that historical event although they were different in their very nature. Therefore, their bond did not last long. The second reason behind it was the geopolitical situation, or 'Madhes factor'. Some sections of power are apprehensive about the rise of the opposition, and Madhes-based parties also blame the CPN-UML for their grievances. The Madhesi parties feel that UML chair KP Sharma Oli compromised on many things for his post as the Prime Minister.

External factor is the third cause behind the enmity between the two major parties in the country. The southern neighbour was vocal in terms of the issues of Madhes. The growing crack between the UML and NC has largely benefitted the CPN-MC. If the two major parties had been together till now, the MC's results in the first and second phase local elections would have been poorer. The results were higher than their expectation. The biggest loser in the game is the Nepali Congress.

Amendment of the constitution has become a major agenda in national politics. The ruling parties and Madhes-centric parties have made it the main agenda in the elections in Province 2. Do you see the possibility of the amendment issue having an impact on the election results?

Yes, it might have an impact to some extent. Considering the sentiments and reach, the Rastriya Janata Party-Nepal should be in a strong position, but their preparation was short. So, I see the NC and UML as the major forces in the elections in Province 2. If the Madhesi parties fail to gain a majority in the province, chances are high that new tensions will emerge there. That will create new frustrations. Although it’s a matter of people's choice, it would be better if Madhesi representation is ensured.

Are we to believe that with their decision to participate in the local polls, the Madhes-based parties have accepted the constitution as it is?

They never fully rejected the constitution. While promulgating the constitution, only 25 votes were against it. The Madhesi parties participated in the second phase local polls. So their participation in the polls indicates that they have accepted the constitution partially, I would not say they have fully accepted it. They want to welcome this constitution with some amendment.

Why does our southern neighbour have such great interest in our statute?

It’s a psychological factor. Politics of fear might have inspired it. India wants to keep Nepal in its grip, and is apprehensive that a stable Nepal might go under Chinese domain. We, too, have a problem when it comes to our relations with India. India has a feeling that it played an important role in the entire peace process but was ignored while promulgating the constitution, which was the final glitch in the process. There is no doubt about the role India played in Nepal's peace process, but we have objections to the way it wants to take credit of the achievements. I have already said that there are problems in the constitution, but the situation around the globe has always been the same while framing the constitution the first time.

During his state visit to India, Prime Minister Sher Bahadur Deuba gave assurances to the southern neighbour that the constitution would be amended. What is your take on that?

It was a result of the temperament of the Prime Minister. He does not take things seriously and expresses opinions without considering the consequences. Similarly, he might have wanted to do so to placate India and its Premier Narendra Modi. Whatever be the reason, such things certainly will not help in furthering bilateral relations between the two countries. Relations should be equal at every international forum. 

Published in The Rising Nepal Daily, on 19 Sept. 2017