Perspectives shared at the NEPAN’s Regular Sharing Session on Sunday, 13 July 2014 at NEPAN Meeting Hall

'Crafting New Constitution for Peace and Development: Reflections on Ongoing

Constitution Making Process from Participatory Perspective'

Bishnu Raj UpretiPhD, Conflict Management,

Nepal Centre for Contemporary Research (NCCR) Kathmandu

Tel. 98510-75448

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Formal powerhouse for constitution making process

1. Outline of the presentation 1. The context : Transition and its management 2. Peace process in post-conflict transition 3. Contextualizing development in post conflict

context 4. Reflections on constitution making process5. Interrelationship between constitution, peace

and development 6. Challenges for participatory constitution

making process 7. How participatory is ongoing constitution

making process 8. Conclusion

1. The context : Transition and its management

1. Prime concerns 1. Need for a new constitution addressing:

1. State restructuring2. Economic growth and stability 3. Addressing structural causes of the

conflict (exclusion, inequality, discrimination, chronic poverty, etc.)

2. Parties polarizations and alliances 3. Parties outside CA 4. Geo-political dynamism and international

interests (India, China, Europe and USA)

Defining transition management:

Transition management is a context-specific and reflective process for managing socio-political uncertainties and complications arise from

a) abrupt change in political system,b) deliberate, vested interests of powerful actors, and c) societal requirements for stabilising the change

processto achieve desirable outcomes by mobilising collective and individual agency (by transition managers and other key stakeholders).

1. The context : Transition and its management -2

Defining post-conflict transition management: Post-conflict transition management is a political, social and organizational process for dealing with and addressing of the provisions stated in the peace agreement to achieve sustainable peace, economic stability and strengthening democracy by mobilising:

• collective and individual agency, • Available resources (time, good-will, networks, etc.), •international relations and •Aspiration of people

1. The context : Transition and its management -3

CPA basis of post-conflict transition management :

New constitution

Guiding framework source of

Interim Constitution, CA, the government

and the Presidency

1. The context : Transition and its management -4

2. Peace process in post-conflict transition

1. Different understanding of PCT• Duration between signing of the peace agreement to

completion of implementation of its provisions 2. Post-conflict transition: a complicated phenomenon

1. Politically, economically, 2. Security and Rule of law 3. International interests

3. Characteristics: 1. Regime of mistrust, suspicion 2. Messy, insecure social psyche, 3. Weak economic health of nation, 4. confused political direction 5. Opportunistic activities 6. Nepal specific characteristics (next slide)

2.Peace process in post-conflict transition-2

Nepal specific characters of post-conflict transition– Criminalisation of politics and politicisation of crime– Militarization of youth – Radicalisation of society– Caste-ethnic divide (growing communalism)-latent– Religious extremism-latent– Developing as a transit point for trans-national

crimes – Politicisation of state functionaries – Subsistence economy:

• traditional agriculture and • remittance Otherwise Nepal’s economic collapses

2.Peace process in post-conflict transition-3

Pillars of peace process– Power sharing– Security sector transformation and dealing with

combatants – Transitional justice (TR, reparation, justice etc)– Peace dividends– Economic recovery and stability – Post-conflict reconstruction and development– Institutionalisation of the provisions of peace

agreement (constitution making) – State restructuring

•Post-conflict period: a period between the day of signing the peace agreement and the full implementation of the provisions of peace agreement (often completes once the elected government from the adapted/new constitution fully functions)

•Post-conflict dev is combination of vision, strategy, process and outcomes of reorganizing economic, and socio-political interventions by re-establishing the states affected by armed conflicts and war (civil and inter-state wars).•It is politically, economically, and organizationally different than the normal dev process and influenced by

•provisions of peace agreement, • external interests and •public expectations

• Constitution provides framework for the dev, country is run by Int. Constitution. Therefore New Constitution is necessary for effective development

3. Post conflict development dynamics

4. Constitution making process

Dynamics of Constitution

making

Managing time (e.g.,

deadlines )

Publicexpectation

management

Resolving state

restructuring issues

Dealing with mistrust and confidence

crisis

Managing ideological differences

of key actors

Managing externalities (diplomacy,

vested interests, etc)

4. Reflections on constitution making process-1

Reflection of 1st CA

4. Reflections on constitution making process-2

1. Different committees did good job but CA failed 2. Still unsettled issues in the 2nd CA (carry over form 1st CA)

1. Elected president v/s directly elected PM or PM elected by Parliament

2. Provinces (numbers, naming, demarcation, authority, etc.) 3. Electoral system (Mixed-member proportional representation

voting system or Parallel mixed voting system or multi-members system)

4. Whether to keep some issues unchangeable (aaparibartaniya) in the constitution (preamble)

5. Whether to use Bahulbad, Janayudha, Madesh Andolan in the constitution and if yes how

6. Decision of prior rights (aggradhikar), + …………

4. Reflections on constitution making process-3

1st CA: Few vital issues led to its collapse

14 Committees of 1st CA1. Constitutional Committee2. Committee on Preservation of the National Interest3. Committee to Decide the Form of the Legislative Body 4. Committee to Decide on the Basis for Cultural and Social Commitments5. Committee on the Division of Natural Resources, Financial Rights and Public

Revenue6. Committee to Decide on the Structure of the Constitutional Bodies7. Committee on the Judicial System8. Committee to Determine Forms of the Governance of State 9. Committee on Restructuring the State and Distribution of State Power10.Committee on the Protection of the Rights of Minorities and Marginalized

Communities11.Committee on Fundamental Rights and Directive Principles12.Committee on Citizens Relations13.Committee on Public Opinion Collection and Coordination14.Committee on Capacity Building and Resource Management 16

4. Reflections on constitution making process-4

17Source: TKP 1 January 2014

4. Reflections on constitution making process-51st CA: 6 provinces model by minority in CA’s SR Committee

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4. Reflections on constitution making process-61st CA: 11 provinces model agreed by all parties on 15 May 2012

Source: TKP 1Jan 2014

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4. Reflections on constitution making process-71st CA: 14 provinces model passed by majority of State R. Committee

Source: TKP 1Jan 2014

Source: TKP 1Jan 2014

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4. Reflections on constitution making process-81st CA: 10 provinces model by majority of State R. Commission

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4. Reflections on constitution making process-91st CA: 6 provinces model by minority of State R. Commission

Source: TKP 1 January 2014

4. Reflections on constitution making process-101st CA: Few vital issues led to its collapse

1. Problem in State Restructuring Commission:1. 19 differences the included in their separate

report by the minority members (Ramesh Dhungel, Sarbaraj Khadka and Sabitri Gurung) ranging from ‘Definition’, to ‘federal structures (provinces : majority: 10-Limbuwan, Kirat, Tamsaling, Madesh-Mithila-Bhojpura, Newa, Narayani, Tamuwan, Magarat, Karnali-Khaptad, and Madesh-Awadh-Tharuwan: v/s minority 6: without naming)’, to ‘division of authority’, + + +, …

4. Reflections on constitution making

process-11Reflection of 2nd CA

Members: 601, 26 yet to be nominated, 80% new faces. New Rules and Procedures, made without drastic change; only

amended in numbers of committees and their roles.

CA + political parties + civil society (collective efforts)

CA Committees

1. Committee to Study and Determine the Constitutional Records

2. Committee on Constitutional-Political Dialogue and Consensus Building

3. Statute Drafting Committee

4. Committee on Capacity Enhancement of Law Makers and Resource Allocations

5. Committee on Citizen Relations and Public Opinion Collection

4. Reflections on constitution making process-12

Participation related function of CA Committee: Committee on Citizen Relations and Public Opinion Collection-1

• सं�वधानको मस्यौामाा� नमम वं ससुाव संककन नन सञ्ााका माा्मयाब मस्यौाको क्ाा कसाा नर ा

• सं�वधानको प�हको मस्यौा पा ककम्मा क ््क ् ेकामा सावन जनक ससनसवाा नर ाा न् का्न नर ा

• सं�वधानको प�हको मस्यौा पा ससुाव संककनकोकाा आवश्कमा नससाा ोोष्, नमार�्ा ा का्नााकाको आ्ो ना नर ा

• �व�भनन माा्म मामन म सवौ्ा वा �वौ्ामा ाह्का न्पाके ना �ाकवाब व््िम म म�ा संस�ा म गपमा कााम ससुावहगको �भक्ेको व्वस�ापन नर का्न सम्म नर ा

4. Reflections on constitution making process-13

Participation related function of CA Committee: Committee on Citizen Relations and Public Opinion Collection-2

• नमायाब कााम ससुावहगको �वशक्वश ाे सो सकवनध् कजमव्ौन सं�वधान सभामा प्ा नर, सभाक् �ववाौेम �वव्हग सहमजमको काा संववधाजनक–ाा न्जमक संवाौ म�ा सहमजम स�मजममा ा सहमजम भ का �वव्हग सं�वधान मस्यौा स�मजममा पषा न् ा

• आफनो का्नर्�सत सकव्नधम न् आवश्क का्न नर ा

• जन्मावकेमा क्�े ौ्�े याह्क स�मजमको न् का्न�वाध स�मजम आमव क् जनधानाश ा् यमो् म हसन् ा

4. Reflections on constitution making process-14

Ownership of the progress of 1st CA great step ahead

Operational modality of the 5 committee: Conceptually excellent but delivery yet to see

Public pressure, international pressure, internal pressure to CA

Moral obligation to CA members (especially the members of both 1st and 2nd CA, Chair)

Positive indications but sustained fear and suspicion

4. Reflections on constitution making process-14

5. Interrelationship between constitution, peace and

development

5. Interrelationship between constitution, peace and development

– Requirement for safe and effective development:• Supportive legal and regulatory framework (comes form

the constitution)• Strong institutional arrangement (comes from the

functional (federal) state structures guided by the constitution)

– Conducive policies and strategies (comes form the country’s development needed envisioned in different articles of the constitution)

– Safe and effective development therefore needs new constitution and consequently it provides peace and stability in the nation

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6. Challenges of participatory constitution

making process

6. Challenges of participatory constitution making process

– Process (ownership and legitimacy):– Inclusive within CA (all members meaningfully engage)– Draft debated and discussed widely and feedback from

public incorporated– Referendum to settle the contentious issues

– Contents and issues: Problem in reaching consensus

– numbers of provinces, Governance System, Modality of Federalism and Election system (full proportional, semi proportional and First-past- the post. System)

– Dealing with the divergent interest of different alliances (e.g., identity based federal str of 7-parties alliance v/s non-ethnic federal str) + Other contentious issues

6. Challenges: Possible complications form polarization-2

1. Polarization of major political forces from formation of the Alliance of 7 Parties [UCPNM, Sanghiya Samajbadi, (AR) MJF Nepal (UY), MJF Democratic (BG), TMDP (MT), Sadbhawana, Terai-Madesh Sadbhawana] on 10 July 2014 (called Sanghya Ganatantra Morcha led by UCPNM and participation of ) to exert pressure to NCP-CPN(UML) alliance claiming that they will not agree on ‘constitution with identity-based federal structures)’ in the name of to 2/3rd majority.

2. Karyagat Ekata Samiti was formed by the initiation of the UCPNM with CPN-M and other small parties outside CA on 14 Ashar 2071 Suspicion on the role of UCMNM

3. Suspicion leads to mistrust non-cooperation blame opposition conformation effect on constitution making

6. Other Challenges-3

• Among the CA Members but few experts

• Members are guided by political parties interests than constitutional theories

• The contentions on non-secularism and monarchism

• Dual role of Constituent Assembly: writing Constitution and parliamentary affairs as well (scarcity of sufficient time)

7. How participatory is constitution making – 1st step: Elected representatives of people – 2nd Step: Inclusive engagement of CA members in

deciding contentious issues – 3rd step: Whether voting result (2/3rd majority)

will be accepted by the minority– 4th step: whether the draft constitution will be

thoroughly discuss with general public – 5th step: Whether the most contentious issues be

settled by referendum– 6th step: Whether the major political parties take

the ownership of the new constitution – It will be too early to judge

8. Conclusions– Huge mistrust and suspicion undermining

concerted action – Without public ownership of the new constitution

legitimacy issue can undermine the outcome– Political commitment to the peace-stability and

economic prosperity is still weaken by the vested interests of individual-, group within the party and party

– Openness to acknowledge unity within diversity within

– Emotion, sentiment and shortsightness is dominating the political process high risk of failure

8. Conclusions-2

– How participatory is constitution making: Too early to conclude, good beginning (2nd CA election), frustrating start in the CA, hope for future but high civilian alert is essential

– No new constitution, no safe and effective development and consequently no peace and stability and vice-versa

– Constitution making does not stand alone and affected by functioning of the movement, intra-and inter- party rivalry, external (especially Indian) interests, etc

If the CA is not able to bring publicly owned new constitution,Nepal‘s peace, development and stability will face this situaiton

Thank you,

Comments and suggestions highly appreciated

Ideas and perspectives extracted from the flowing publications of

Bishnu Upreti

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Thank you

Comments and suggestions appreciated

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