An opinion piece by Nikhil Narayan, ICJ Senior legal Adviser in Nepal and Sanitha Ambast, ICJ International Legal Adviser in India.
When former Nepal Prime Minister and UCPN (Maoist) Chairman, Pushpa Kamal Dahal visited Delhi in mid-July 2015, India’s President, Prime Minister, and members of major political parties voiced their support for the early finalization and adoption of Nepal’s constitution.
Prime Minister Modi asked Nepal to ensure that the constitution was drafted with the support of as many stakeholders as possible.
However, this advice seems to have been ignored given the manner in which the constitution-making process has been fast-tracked in Nepal.
The process underway is seriously flawed, and has resulted in a draft that ignores important human rights obligations.
While continuing to support timely progress, India should encourage the authorities in Nepal to develop a legitimate and rights-respecting Constitution through an inclusive and participatory process.
Nepal’s constitutional drafters began their work over seven years ago, but the process stalled repeatedly due to political disagreements.
However, the earthquake of 25 April 2015, combined with emerging consensus among the major political party elites, has meant that recent weeks have seen sudden and remarkable progress towards the finalization of a Constitution.
Nepal’s four major political parties reached an internal agreement on 9 June 2015, in which they avoided dealing with the contentious federalism issue by agreeing to leave the discussion on the territorial boundaries and names of the new federal entities to a federal commission to be established later.
The Constitution Drafting Committee was then asked to prepare a preliminary text of the Draft Constitution. Nepal’s Constituent Assembly (CA) endorsed this Draft Constitution on 7 July 2015, paving the way for ‘public consultation’ on the provisions of the Draft.
The Committee on Public Relations and Opinion Collection was given 15 days starting 9 July 2015 to consult with and solicit views from the Nepali public throughout the country on the Draft Constitution, consolidate them, and produce a report for the CA. This period ended at the end of last week.
A two-week timeframe to read and respond to a constitutional document that is over 100 pages long is grossly inadequate. As reports have indicated, Nepali people in some regions were effectively given only two or three days to provide inputs.
While a few groups and individuals managed to make submissions, in several other districts people protested the contents of the Draft, and the police responded with force. The monsoon rains further hampered public accessibility to meetings.
It is also unclear whether and to what extent people living in remote areas and/or areas rendered inaccessible by the rains, persons affected by the earthquake, illiterate persons, non-Nepali speakers, and persons living with disabilities, including people who are vision-impaired, were consulted.
It is hard to imagine that the Committee on Public Relations and Opinion Collection was able to process in any detail the views and suggestions collected through the consultation and adequately analyze them within the mandated 15 days.
The Draft Constitution is substantively problematic and several rights are not adequately protected.
The citizenship provisions are vague and discriminatory, and risk rendering people stateless by requiring that children born in Nepal may only obtain citizenship if both mother and father are identified and are Nepali citizens themselves. Non-citizens are excluded from key entitlements and protections.
The provisions on gender equality are controversial, with activists arguing that the current formulation does not guarantee the full range of women’s reproductive rights.
Several economic and social rights are defined inadequately, thus not offering the protections required by international human rights law.
Allowance for restrictions on the rights to free speech, expression, information and press freedom, as well as the rights to freedom of association and assembly, are broad and vague and exceed what is permitted under international human rights standards.
Provisions on remedy for human rights violations are lacking. And guarantees for securing judicial independence are weak and inadequate.
An inadequate consultative process means that people do not have the opportunity to point out these flaws, or to advocate for a Constitution that addresses the root causes of the past conflict and enhances respect and protection of all human rights.
This also means that the Constitution, and the state structures it establishes, may lack necessary public legitimacy and ownership from the outset.
Ensuring genuine consultation and public participation in democratic processes – particularly the constitution-making process – is crucial for the legitimacy of the Constitution and the rule of law in democracies, and would be wholly consistent with Nepal’s obligations under international human rights law.
Public participation is particularly important given the constitutional history of Nepal.
Nepal has had six Constitutions since 1948. Each of these Constitutions, whether authoritarian or democratic in nature, was promulgated without a participatory process.
A major accomplishment of the 2006 Comprehensive Peace Agreement, which marked the end of the civil war in Nepal, was to commit to a Constitution that respected “people’s right to information, transparency and accountability” and “people’s participation”.
While broader consultation may take slightly longer than the “fast tracked” process, it will be a valuable investment if it results in a strong and lasting Constitution.
India has a political and economic stake in a Nepal that is democratic, peaceful and prosperous. A Constitution developed on the basis of a genuine and inclusive participatory process is not just a human right.
It also enhances the likelihood of popular ownership of the Constitution, which was lacking in Nepal’s previous Constitutions, thus improving the chances for peace and stability in the nation.
Photo credit: Sebastian Werner