PHA-Exchange> New constitution for peace in Nepal and People's participation in its development

[Mathura P Shrestha]

Dear All
Kindly peruse the following document. Any comment or advice is welcome. I have also attached the document.
With regards,
Mathura.

Writing a New Constitution for Nepal:

Peoples Participation in the Process

Mathura P. Shrestha

Professor and Chair of Physicians for Social Responsibility Nepal (PSRN) and Coordinator of Civic Solidarity for Peace (CSPeace)

Almost all recognizable political parties, groups and individuals are now convinced that a new constitution is to be rewritten anew to replace the existing one to solve the present conflict with its political, socioeconomic and cultural transformation. The flaws in the existing constitution are mainly related to its discriminatory and unchangeable provisions amounting to bar political progression. Constitutional Assembly (CA) or parliamentary process with referendum is suggested or voiced to formulate the new constitution. The CPN (Maoists) have clarified their position that although the CA is not their purpose for which they waged armed resurrection they are ready to come down to CA as a principle bottom-line for conflict resolution by dialogue. Although the Nepal's government and other major political parties have not put their bottom-lines explicitly they are ready to discuss on CA along with other possible alternatives. Many of them have even made public statements that they are ready to accept CA if that would solve the current conflict and bring about a lasting peace.

Whatever the process of constitution development, following eight basic tenets are to be followed and implemented to guarantee the sovereign rights of the people and democracy particularly the participatory democracy:


  a.. Peoples' participation in the development of constitution. 

People need to own the constitution by their free will. In the present context of Nepal prescribed document from any quarter can not be suitable for such ownership. Too many prescribed provisions with overt protection of vested interests of dominant classes have directly and indirectly eroded peoples' livelihood and interests in too many different ways and for so many centuries in the past. People have every right to participate in the development of the constitution including the process of its research and need assessments, drafting and interactive dialogue towards its maturation, ratification and public endorsement, implementation procedures, follow ups and ongoing legal reformation including rewriting of it, protection of it, and interpret wholly and part of it. The final say about and on it should be reserved with the peoples by way of referendum. People also need to participate in the development of laws, bylaws, and normative and behavioral culture according to the spirit of the new constitution so developed by the people. 

The question, how these be realized, may appear difficult or even impractical. But it is the political and social or moral responsibility of all concerned including the state party to assure inclusive public participation in the constitution development. It is the obligation of the state and all concerned players (stakeholder) to develop a system together that would empower and motivate all peoples of all region and class, including ethnic minorities and indigenous population, women, deprived, socially excluded, madhesis, dalits, disabled, to participate in it. following steps are suggested:


  1.. Political decision on constitution assembly or the parliament empowered to write constitution by two-third majority followed by public ratification through a referendum. Either way, representation of all peoples of all region and class, including ethnic minorities and indigenous population, women, deprived, socially excluded, madhesis, dalits and disabled must be assured politically, and explicitly.


  2.. Development of people-oriented, transparent constitution and legal information system dedicated to keep the people informed. Prospects and risk of any contested provision should be provided honestly and comprehensibly. The system should include resource centers judicially spread over the terrain and easily accessible to the people of all parts and groups. 


  3.. Collection, processing and dissemination of people's opinion, suggestions and concerns of the people through the collecting-booths judicially distributed throughout the country.


  4.. Distribution of drafts of constitution to all the peoples with request for collective interactions and feed backs. 


  5.. Formal and informal interactive programs throughout the country up to village levels to refine the draft. 


  6.. Development of assured structures and setups for a free and fair election of representation body for writing the constitution. People should be informed at regular intervals on the progress in the constitution drafts and final ratification.


  7.. Introduction of socially responsible civic education in the schools from the primary level and in all non-formal education programs to empower people to exercise constitutional rights including the participation in its development.


  2.. Essence and substance of the constitution should guarantee supreme power to the people - sovereign rights of the people and constitutional recognition that 'people is the source of political and state power, and country's history, culture, civilization and norms. 


  3.. The constitution should reflect the spirit and principles of international humanitarian laws, declarations and conventions, especially UDHR, International Covenant on Civil and Political Rights (ICCPR) 1976 and its optional protocols of 1976 and 1991; and International Covenant on Economic, Social and Cultural Rights (ICESCR) 1976.


  4.. It should be reflective of ground realities including political, social, economic and cultural states and embody aspirations of the people, and thus appeal their hearts and minds in solving their problems particularly those of socially displaced, women, ethnic minorities and indigenous people, madhesis, dalits and disabled.


  5.. Constitutional protection from external interventions, aggressions and encroachments, and exploitation from global capitalism including globalization and multinational companies.


  6.. It should be progressive with constitutional protection from retrogression by the reactionary rulers. This should commit to uplift socially displaced resulting from centuries of misrule, exploitation and segregation out of a hate culture to degrade the disempowered. Therefore it should celebrate diversity, and explicitly be anti-feudal, anti colonialist and anti hegemony.


  7.. It should guarantee rights of all to basic needs - (a) food and nutrition, (b) shelter with decent housing, (c) protective clothing, (d) education to empower informed decision and creativity, (e) health including safe water and sanitation, (f) security including social security, (g) clean and healthy environment, (h) productive employment with adequate remuneration, (i) social identity with social relations, (j) Participation in local and national sociopolitical activities, (k) recreation and cultural interaction, and (l) human rights.


  8.. It should incorporate rights to dissent and/or even to rebel against injustice and oppression.

Kathmandu, August 28, 2004

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