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India’s World – Nepal Grapples with Constitution Drafting

India’s World – Nepal Grapples with Constitution Drafting



Just when they had thought that they had broken a gridlock on drafting the constitution, Nepal’s political parties have been thrown into tizzy because of a supreme court order. The parties had decided that the Nepal would be a federation of 8 provinces demarcated by a federal commission. This took the most controversial subject out the drafting process as the parties had been bricklaying over federalism since 2008. They also decided that Nepal would be a parliamentary democracy with an executive prime minister, that there would be two houses of parliament, eight provincial assemblies and an independent supreme court. There would also be a constitutional court which would last for ten years. In effect, most of the contentious issues had been sorted out by the big political parties through dialogue but outside the constituent assembly. However, in response to a petition, Nepal’s supreme court issued an interim order staying all these. It ruled that the issues of state restructuring that is delimitation of federal states, number of federal states and names to be decided by their constituent assembly and not by anybody outside it.

The Supreme Court has said, “It is clear that dissolving the constitutional assembly before a progressive restructuring of the country takes place with the border, number and name and structure, as the article 138 states, will be against the constitutional provisions.” Article 138 of the constitution and its clause say, “The boundaries, number, names and structures, as well as full details of autonomous provinces and the Centre and allocation of means, resources and powers shall be determined by the Constituent Assembly, while maintaining the sovereignty, unity and integrity of Nepal.” Clause 3 of Article 138 states that the final settlement on the matters relating to state restructuring and the form of federal system of governance shall be as determined by the Constituent Assembly.

However, the political parties have refused to accept the SC order and are going ahead with their plans to deliver a draft of the constitution by mid-July. This development has put the major parties and the judiciary on a collision course and could further delay drafting of the constitution. Nepal’s major parties have termed the SC move as the judiciary’s intervention on political issues and violation of the constituent assembly’s rights. The parties have said that the SC order strangled the special rights of the sovereign Constituent Assembly, created obstructions over the constitution writing process that had arrived at the final stage after eight years of ups and downs. The SC order also promoted instability and chaos.

According to a deal signed, by the major political parties in Nepal, the task of demarcating the boundaries of the new states was left to a federal commission. The recommendations of the commission were to be passed by majority vote in the constituent assembly and incorporated in the new constitution. The deal, opposed by some minor parties, sought to end the long-standing differences between political parties over federalism and expedite the constitution drafting process which has been underway since 2008.

Some legal experts believe the SC move will lead to friction between the judiciary and the constituent assembly.