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Nepal: Agree to (have the Supreme Court) Disagree

Vikram Aditya Narayan, Advocate, Supreme Court of India

Until a couple of decades ago, federalism was nothing more than an academic subject in Nepal. However, it has now become a political reality, with the Parliament/Constituent Assembly deliberating over the manner in which Nepal can and should transform itself under the new Constitution. The basis for a federal setup in Nepal is the need to end the nation’s history of political inequality, which created conditions favorable to the thriving of the monarchy and subsequently the Rana oligarchy.

The demands for federal restructuring go far beyond the need for decentralized administration, with the multiple and diverse ethnic groups laying stress on a structure that respects proportional representation and actual inclusion. Despite the notion of federalism gaining popularity among political parties, agreement on the manner in which Provinces are to be demarcated has been difficult to achieve. In its reports to the Constituent Assembly in 2012, even the State Restructuring Commission of Nepal was unable to come to a consensus on the Provinces to be established, with the number ranging from six to eleven.

However, earlier this month, in what has been hailed as a landmark event, four major political parties in Nepal agreed in principle that under the new Constitution the country would have a federal structure consisting of eight Provinces.

This was part of a 16-point agreement signed by the Prime Minister, Sushil Koirala (President of the Nepali Congress) along with the respective Chairmen of the Communist Part of Nepal (Unified Marxist-Leninist), the Unified Communist Part of Nepal (Maoist) and the Madhesi People’s Rights Forum (Democratic). A copy of the full text of the agreement in Nepali is available here, while a translation of the 16 points may be found here.

Points 1, 2 and 3 of the agreement pertain to the proposed federal setup, and read as follows:

  1. The Federal Democratic Republic of Nepal will have eight provinces based on five criteria of identity and four criteria of capability.*
  2. Two-thirds majority of provincial assemblies will name the provinces.
  3. The Nepal government will form a federal commission to recommend on demarcation of federal provinces. The commission will have tenure of six months. The Legislature-Parliament will take a final decision on the demarcation with a two-thirds majority after the recommendation of the commission. (emphasis added)

Feeling threatened by the idea that demarcation of boundaries would (a) not be undertaken by the Constituent Assembly and (b) that it would be left to be done after the commencement of the Constitution, various groups in Nepal, particularly Terai-based Madhesi parties, took strong objection to the agreement.

A Madhesi activist and Nepal’s former ambassador to Denmark filed a petition in the Supreme Court seeking a writ in the nature of mandamus and certiorari against some points of the agreement. According to one report, the petitioners had contended that the clauses of the agreement violated Articles 12, 13, 21, 70 and 138 of the Interim Constitution and various provisions of the Constituent Assembly Rules.

Pertinently, Article 138(1) of the Interim Constitution provides that Nepal shall be progressively restructured with inclusive, democratic federal system of governance, by doing away the centralized and unitary system of the State so as to end discrimination based on class, caste, language, gender, culture, religion and region.

Article 138(1a), which was inserted by the Fifth Amendment to the Constitution, further provides that “the boundaries, number, names and structures, as well as full detail of the lists, of autonomous provinces and the Center and allocation of means, resources and powers shall be determined by the Constituent Assembly …” (emphasis added).

Furthermore, Article 138(2) provides for the constitution of a high level commission to make suggestions on the restructuring of the State and Article 138(3) states that the final settlement on the matters relating to the restructuring of the State and the form of federal system of governance shall be as determined by the Constituent Assembly.

Last week, the Supreme Court read Article 138 with Article 82 of the Interim Constitution (providing that the business of the Constituent Assembly shall end on the day of the commencement of the Constitution passed by it), to observe that dissolution of the Constituent Assembly before restructuring of the Provinces, including settling of issues such as delineation, fixing their number and names would be against the constitutional provisions. Pointing out that framing the new Constitution by bypassing the existing interim one could be extremely harmful to the country, a single bench of the court issued “an interim order till another order, telling the defendants not to do anything against Articles 1, 82 and 138 of the Interim Constitution”. (A translated copy of the order may be found here)

While it is unclear from the language of the order whether the Parliament/Constituent Assembly must completely or partially refrain from carrying out the 16 point agreement, this interim order has given rise to new tension in the politics of Nepal with leaders of numerous political parties stating that they will continue drafting the Constitution as per the agreement. The parties seeking to go ahead in this fashion are characterized by their sudden urgency to pass a new Constitution.

However, keeping in mind Nepal’s volatile past, and its previous failed attempts at Constitution writing, the parties must take special care to ensure that fairness in the drafting process does not give way to haste. At a very basic level, the Supreme Court’s stay order regarding the 16 point agreement serves as a reminder to the major political parties that smaller parties and civil society need to be heard, especially on the issue of drawing State boundaries, if progress is to be made.

The process of consultation to achieve consensus is a continuous one, and the role of the Supreme Court in ensuring that such consultation occurs is a delicate one. Admittedly, the Constituent Assembly is a sovereign body, and it would be dangerous for the court to disregard that, not least because its own independence shall depend on the new Constitution to an extent. Having said that, there can be no doubt that the Interim Constitution of 2007 must be adhered to, and at least in this case, it seems the Supreme Court’s ruling is supported by the words contained therein. Instituting a federal structure in Nepal has never looked to be a simple task, and requiring the Constituent Assembly to ensure completion of that process before its dissolution seems like a smart way to go about it, even if one were to ignore the provisions of the Interim Constitution.

An alternative solution that is more in line with the clauses of the 16 point agreement is to have a Commission akin to the proposed Federal Commission make recommendations to the Constituent Assembly itself, which could then take decisions on demarcation. In either case, it is crucial that Nepal does not lose the momentum it has gained till now.

Suggested Citation: Vikram Aditya Narayan,  Nepal: Agree to (have the Supreme Court) Disagree, Int’l J. Const. L. Blog, June 23, 2015, at: http://www.iconnectblog.com/2015/06/nepal-agree-to-have-the-supreme-court-disagree


*As clarified here, the five criteria of identity are: ethnicity/community, language, culture, geographical and regional continuity, and history; and the four criteria of capability are: economic interrelationships and capability, the status and potential for infrastructure development, availability of natural resources, and administrative feasibility.

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Published on June 23, 2015
Author:          Filed under: Developments
 

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