For anyone who believes in the rule of law, the draft of the new constitution may not be worth-commenting on as its drafters have shown a complete disregard to an interim order by the Supreme Court which has already termed the drafting process unconstitutional. However, the draft which has been made public is full of several flaws.
--By Akhilesh Tripathi
Going by the number of articles kept in the constitution draft, one would assume that it’s a perfect and inclusive document, addressing the aspirations of all Nepalis. But that’s not the case. Many have said the draft of the new constitution has turned out to be a boring and bulky document.
Let’s begin with the preamble. The preamble of the constitution draft is full of nice-sounding words which have become catchphrases in recent times. It does talk about the historic people’s movement and the armed struggle (waged by the Maoists) but it has no mention of the Madhesh movement. Similarly, the document does talk about respecting the martyrs, the disappeared people and victims.
Martyrs do deserve respect, no doubt. But do only the disappeared people and victims, besides martyrs, deserve respect? Or do all Nepalis deserve respect? What about a good doctor who saves lives? What about the farmers who toil hard so that the rest of the population can be fed? What about the businessmen and entrepreneurs who provide employment to thousands? What about the bureaucrats, police and army men? It’s not that all of them are bad guys. So, don’t all these people too deserve respect?
And again who does the preamble of the proposed draft constitution refer to as victims? Victims of what? The preamble doesn’t answer these questions and thus leaves even the best interpreters of constitutions confused.
How do you respect the disappeared and the victims? Just by mentioning them in the constitution? Or something more concrete like finding the whereabouts of the disappeared and giving justice to the victims?
Similarly, the preamble does talk about ending all kinds of discriminations and persecutions “created by the feudal, autocratic, centralized and unitary state system”. But it’s not clear which period in Nepal’s history it is referring to as feudal and autocratic. The Malla and the Lichhavi eras? The time of the Shah kings? The Rana rule? Or the post 1990 multi-party period? Was the post 1990 period also feudal and autocratic? And what about the post 2008 republic period?
For almost eight years now, the country has been trying to become a full-fledged republic. Parliament has declared the country a republic, that is even without asking the people directly and the constitution which would institutionalize the republic is yet to come. The one that has come is not worth the paper it’s written on.
What has changed in these eight years so that one could say the so-called feudal structures of Nepali society has been brought down? What real, tangible changes has the republic brought about in the lives of the common Nepali people? Not much. It seems changes in Nepal occur only on paper.
Similarly, the preamble envisages an “independent, fair and efficient” judiciary. But we should not forget that the draft of the constitution is prepared by the same four political parties which have defied a Supreme Court verdict very recently! These are the people who have always talked about upholding the rule of law. It is as difficult to practice as it is as easy to preach.
Likewise, sub-clause (a) and (b) of Article 12 (1) mean almost the same thing – both the father and the mother have to be Nepali citizens for their children to get citizenship on the basis of descent. Article 12 (2) too basically says the same thing, the only change being that citizenship can be issued under the name of either the father or the mother.
Article 12 (3) is dangerous. It says minors found in Nepal and whose fathers and mothers remain unknown shall be considered citizens based on descent as long as their fathers and mothers are unknown. This provision could lead to the dumping of children on Nepali territory, especially from the neighourhood. There will always be some people who would say that they found the child somewhere and are just raising him or her. And it’s possible that the actual father and mother of such children would never be known!
Similarly, Article 12 (4) says that a child born to a Nepali mother in Nepal and who has been living in Nepal and whose father remains unknown shall be provided citizenship based on descent. This provision could lead to illegitimate births. Social stigma, more often than not, stands in the way of people born this way. So they do not get a chance to grow up in a complete family environment. The father is not there in the first place. And our society is always ready to point fingers at single mothers. And again, why the need to hide the father? We all know every child has a father. If we are to issue descent-based citizenship according to this provision, let’s first ask the women how many of them want to be a single mother.
While making a new constitution, we should definitely look at the global trends and practices, but the local norms and values should not be ignored.
Everything about the Rights of Victims of Crime and Rights against Torture has been said in just four short sentences or, to be more precise, a mere 66 words in Articles 26 and 27. Why so few words about such important issues? Hundreds of thousands of Nepalis have been subject to torture and are victims of various kinds of crimes.
And look at what these four sentences say! Number 1 – “The victim of a crime shall have the right to get information on the investigation and action taken in the case in which he/she is the victim.” Number 2- “The victim of a crime shall have the right to social rehabilitation and compensation as per the law.” Number 3 - “A person kept in detention shall not be given physical or mental torture, nor shall she\he be subject to cruel, inhumane and disrespectful behaviour.” Number 4 – “The action as per sub-clause 1 (Number 3) shall be punishable as per the law and the person who is a victim of such action shall have the right to get compensation.”
It’s not even scratching the surface; almost doing nothing.
Article 34, which talks about the Rights against Exploitation, says that nobody shall be forced to work against their will. But there is a rider to this provision which says the state could actually force the citizens into compulsory service. Some constitutional experts have taken it as meaning conscription.
Article 36, which deals with the Right to Education, says every citizen shall have the right to basic education but it doesn’t define what ‘basic education’ is. Similarly, it promises free education up to the secondary level, but is that really possible? Sub-clause 5 of this article says every community living in Nepal shall have the right to get education in their mother tongue up to the secondary level. But why is this provision only up to the secondary level? If one has studied in one’s mother tongue up to the secondary level, won’t it be difficult for him/her to continue his/her education in another language?
Article 39 (3) says every labourer shall have the right to form a trade union, participate in collective bargaining. But when the Right to Association has already been addressed under the Fundamental Rights, why is there a need to mention separately a labourer’s right to form a trade union. If so, why not mention that doctors, engineers, lawyers and other professionals, too, shall have the same right?
The draft of the new constitution promises too much and assures the people of too many things – from the right to free basic health, education, to the right to food and housing. But whether the people implementing the constitution will be able to keep these promises is the biggest question. The Nepali people have been made such promises time and again. The order in which the words are/were placed may be different and some new catchphrases may have been added, but no constitution has been able to solve Nepal’s problems.
The other commissions mentioned in the draft have a chief commissioner and five commissioners. But the National Dalit Commission has a chairman and four members. Isn’t there something wrong with this?
As per the draft, a National Security Council shall be formed but it will have no representation from any of the security agencies. The drafters of the constitution think that there is no need to include the Nepal Army chief and chiefs of Nepal Police, Armed Police Force and National Investigation Department in this all-important council. We all know politicians are not experts in security matters. It would be better if at least the chiefs of all our security organs were included in the National Security Council.
These are just a few examples. But constitutional experts say that the constitution draft is full of such discrepancies and language ambiguities.
We’ve all heard of the phrase two-faced. This draft isn’t quite like that. In fact you could call it as being four-faced. This maybe coining a new word, but novel uses are probably appropriate since the constitution draft itself is a new thing. The four main political parties are the four faces of the draft constitution. Or the four faces who lead these parties.
How many of you can find your face in the draft?