Constitutional Reform: Comprehensive Peace Agreement
2. Definition: Unless the subject and context mean otherwise, in this agreement:
(b) “Interim Constitution” means the “Interim Constitution of Nepal 2006" to be adopted and remained in force until drafting and enforcement of the new constitution by Constituent Assembly.
3.2. To constitute Interim Legislature - Parliament as per the Interim Constitution, to have the elections to Constituent Assembly held by the Interim Government in a free and fair manner by June 15, 2006 and to practically guarantee sovereignty inherent in the Nepali people.
Once the House of the Representative was reinstated, the government started consulting with the Seven Political Parties and the Maoists on stripping the King’s power and drafting an interim constitution. This process began before the signing of the Comprehensive Peace Agreement on 21 November 2006. On 16 June 2006, the government of Nepal and the Maoists agreed to form an Interim Constitution Draft Committee (ICDC) to complete the draft interim constitution within the time frame of 15 days. The work of the draft committee, however, was delayed. On 7 July 2006, the government asked the ICDC to begin its work. The committee submitted the draft interim constitution on 25 August 2006. The modality of the transitional government was explained in the interim constitution. Yet, the constitution’s promulgation was delayed until the agreement on the implementation of the monitoring of arms and army management (AMMAA) began. This was established according to the CPA, signed on 21 November 2006, and the Monitoring of Arms and Army Management, signed on 8 November 2006.1
- 1. "SCHEDULE-2 RELATING TO CLAUSE (2) OF ARTICLE 167," Interim Constitution of Nepal, 2007.
The interim constitution was promulgated on 15 January 2007.2 According to the constitutional provision, a consensus government was to be formed until the final constitution was agreed upon and promulgated. A 330 member interim parliament was established that included representatives from the Maoists. The King was stripped of his royal power.
The interim constitution replaced the 1990 constitution.
In 2007, the interim constitution was amended further: the First Amendment on 13 April 2007, the Second Amendment on 13 June 2007 and the Third Amendment on 28 December 2007. These constitutional amendments included provisions that would allow for the removal of the prime minister and the king by a two-third vote of the interim legislature if they should pose an obstacle to the Constituent Assembly elections.3 The third amendment ensured that Nepal was to be a republic. This amendment was to be implemented by the first CA session.4
It was planned that the CA would write the final constitution. However, the election for the CA did not take place in 2007.
The Constituent Assembly elections took place on 10 April 2008 and the Maoist party established itself as the largest party by winning 220 seats. A delay in the formation of a consensus government prompted that the Fifth Amendment be added to the interim constitution. The Fifth Amendment was adopted on 13 July 2008 and provided the basis for the formation of a majoritarian government.5
The CA started to work on the draft constitution, which was scheduled to be promulgated before the tenure of the CA expired on 28 May 2010. On 14 November 2008, the CA approved a set of regulations and procedures for drafting the country’s constitution. The assembly endorsed an 82-week calendar for completing the drafting process and established 14 committees to carry out the drafting of the constitution. The core of these committees was the Constitutional Committee, a 61-member committee that was created to work on the concept papers prepared by the 10 thematic Assembly committees.6 However, the constitution making process did not move smoothly because the major political parties were unable to reach a consensus.
All members of the Constitutional Committee, as well as the members of the Legislature-Parliamentary Committee, were elected by 13 January 2009. Mr. Madhav Kumar Nepal, a senior leader of the Communist Party Nepal-United Marxists Leninists, was unanimously elected Chair of the CC. In the process of drafting the constitution, 40 teams comprised of CA members visited all 75 districts to solicit public opinion on constitution.7 Despite all these efforts, the constitution making process faced major obstacles, as the predominant political parties could not find a common ground on many issues including federalism, the modality of government, the management of arms, and the Maoist combatants. Moving from the national consensus government to a majoritarian government posed the greatest obstacle in the constitutional writing process.
- 7. "Secretary General’s Report to the Security Council," Untied Nations (S/2009/221), April 24, 2009.
In March 2010, “the Constitutional Committee (CC) adjourned its proceedings until further notice, unable to complete the first draft of the constitution, due on 5 March, since only one of ten thematic committee reports had been approved by the Constituent Assembly (CA). Meanwhile, contentious issues such as state restructuring and the future form of governance remain unresolved.”8 The CA failed to deliver the final constitution on 28 May 2010. An amendment to the interim constitution extended the term of the CA for another year, until 28 May 2011. To resolve the constitutional dispute, a high-level political mechanism was established and chaired by Mr. Puspa Kamal Dahal. This mechanism was comprised of representatives from seven parties in the Constituent Assembly, and was formed in October. Its aim was to settle the 210 disputed issues that had been identified by the Agni Kharel-led panel who consulted the concept papers of eight thematic committees of the CA. The task force resolved 100 of the disputed issues.9
The failure to form a consensus government resulted in the failure of the Constituent Assembly to complete its task of producing a final draft of the constitution. Other reasons were the reluctance of the Maoist party to initiate the rehabilitation of their combatants and the ideological gap between the Maoist party and other parties as the Maoist had argued for the “people’s constitution” and the other parties were in favor of a fully “democratic constitution.” The tenure of the CA was extended for the second time in May 2011, this time for three months. This extension is set to expire on 28 August 2011. It has been reported that the three major parties agreed to establish a State Restructuring Commission, which is expected to recommend a viable model for the federal province system in Nepal to the Constituent Assembly.10 The Constitutional Commission proposed a mixed model of government.11 These developments, however, failed to bring all political parties and stakeholders together. The remaining obstacles obstructing the finalization of the constitution include contentions over state restructuring, the integration and rehabilitation of the Maoist combatants, and the form of government. Lack of consensus among political parties has made the constitutional drafting process difficult.
Parties had finalized the composition of the government and federal legislature. Parties also had agreed that federalized state of Nepal was to have 11 states. The names of the provinces were to be finalized by the respective provincial assemblies and the federal commission was to finalize the territorial boundaries of the provinces.12 But, under tremendous pressure from Madesh-based parties in the Maoist-led coalition government, the Maoist party backtracked from earlier agreements on federalism by insisting on a form of ethnically based federalism.13 With this development, effort to resolve all contentious issues based on consensus between major political parties failed. This fed the mistrust among political parties at the crucial moment and parties failed to settle all contentious issues leading to the demise of the Constituent Assembly on 28 May 2012.
Political parties promised to deliver a draft constitution within a year after holding the constituent assembly elections. Elections for the constituent assembly took place on 19 November 2013. No further progress was made in the constitution drafting process.
While major political parties tried to settle disputed issues in the constitution drafting processes, substantial progress was not made. As a result, the Committee for Constitutional, Political Dialogue and Consensus Building was created and former rebel leader Baburam Bhattarai was elected unopposed as the chairman of the CCPDC on 25 April 2014.14 The CCPDC had three months to engage political parties in dialogue and forge consensus on major issues. The CCPDC produced a report in September and reported that the committee was able to settle 30 contentious issues but key issues (federalism, form of government, judiciary, and electoral system) related to the constitution were not settled. 15
While efforts to find solutions to contentious issues continued, parties have not been able to settle constitution related issues and produce a draft version of the constitution. On 31 May 2015, leaders from four major parties met and agreed to settle all key issues within a few days and produce a draft constitution through fast-track.16 On 9 June, 4 major political parties reached a 16-point agreement to deal with the contentious issues.17 The draft constitution was submitted to the CA on 30 June.18 Deliberation on the draft constitution started on 2 July and completed on 7 July. The CA engrossed the draft constitution and sent it to publish in the Nepal Gazette to collect people’s feedback for the next fifteen days on 7 July.19
- 16. "Big 4 agree to settle key disputes in next 3 days,” Republica, May 31, 2015.
- 17. “Way paved for constitution as four parties reach 16-pt deal,” Kathmandu Post, June 9, 2015.
- 18. “CA gets constitution draft, Kathmandu Post, June 30, 2015.
- 19. “CA concludes deliberation on draft constitution, sends for public feedback,” Himalayan Times, July 7, 2015.