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All eyes in Nepal are on the Constitution-Making Process (CMP). With the May 28, 2010 deadline for the drafting of the constitution fast approaching, barely 6 months remain to reach the goal, requiring more intense focus on the process. This resource is part of an ongoing project of the Media Foundation to create an inventory on useful online information and tools on the CMP, for journalists, writers and researchers.

It includes global and national historical perspectives, a timeline for Nepal, links to Constitutional Committees and their activities, and useful online resources on CMP and the role of media. Above all, this tool kit is designed to help locate relevant information quickly and efficiently in a single platform. 

 

Constitutional waves in history

As of November 20, 2009, the Constitution-finder (at University of Virginia at Richmond) records a total of 201 constitutions of nations and territories around the world. According to Dr Jochen Abr. Frowein, Director of the Max-Planck-Institute for Comparative Public Law and International Law, there have been at least 3 major waves of constitution making in history. The first began after World War I. The second started after the liberalization process, following World War II. The collapse of the communist empire and the end of Cold War in 1989coincided with another wave of constitution making, in what is also described as the “third wave” of democratization process.

A recent (March 4-7, 2008) Princeton University deliberation notes that the newest wave of constitution making has several distinct causes:

“The new wave of constitution making has several distinct causes.  Institutional crisis and the shift to multi-party rule as an attempt to generate greater governmental accountability necessitated new constitutions in some instances.  In others, people have lost confidence in democracy and now seek to re-work some of the institutional arrangements putt in place earlier [Somewhat relevant to Nepal].  Wars and peace settlements [Relevant to Nepal], or the collapse of federations, have also precipitated the creation of new constitutions.  In some instances, constitutions and constitution making are frameworks for continued negotiations and must assume the difficult task of creating order.”

Constitutions in history (some major examples)

Israel: The Ten Commandments of Moses (recorded them circa 1450 BCE) is considered to be one of the earliest written constitutions or super-law (covenant).

Greece: Athenian Constitution, more of a treatise than an abiding document (Written 350 B.C., most probably by Aristotle)

Middle-East: Muslims regard the Covenant of Medina, signed in 622 AD, as the world’s first written constitution.

Modern world (key examples).

These were all messy affairs, requiring long dialogue, compromises and amendments:

USA: Following the United States Declaration of Independence on July 4, 1776, the independent 13 States adopted the US Articles of Confederations in the Continental Congress on November 15, 1777. But the accord did not help in the unity between States. The actual writing of the Constitution took a few months, but it was only ten years later (September 17, 1787) that the Constitution of the United Stateswas adopted on). It took 116 days between the convention and adoption. The new States agreed to vote for the Constitution a year later (1788) only when the framers promised to write and add Bill of Rights to the constitution (the first ten amendments to the Constitution).

France: Adopted on 3 Sept 1791. Original French Constitution, in French, published in Journal Officiel de la République Française, 5 October 1958. In English version (from National Assembly of France Website). The process took over two years. The French National Assembly began the process of drafting a constitution in the summer of 1789. Declaration of the Rights of Man and of the Citizen was approved by the National Assembly of France, August 26, 1789. It eventually became the preamble of the constitution. The constitution dissolved for a year due to internal strife, until October, 1792.

Norway: Signed on 17 May 1814, available at the Stortinget, the Parliament of Norway (amended on 20 February 2007) Written during late winter and spring of 1814 (inspired by U.S. and French constitutions).

Other earlier constitutions: Belgium (1831) Argentina (1853) Luxembourg (1868) Switzerland (1874; amended 1999, English & Nepali).

Neighboring countries/South Asia (the figures in parenthesis are not necessarily the years of first adoption): Afghanistan (2004) Bangladesh (1972), Bhutan (2008) China (adopted 4 Dec 1982) India (1949) the Maldives (2006) Nepal (interim, 2008) Pakistan (1999) Sri Lanka (1978).

The Indian Constitution process also took a long time, although not the actual writing of it. The seeds of the Indian Constitution (adopted on November 26, 1949) had been sown in the Government of India Act 1935, some 12 years before Independence in the midnight of 14 Aug, 1947, when constitutional committees were also formed. The draft constitution was written between Aug 29 and Nov 4, 1947 (a total of 67 days). But it took almost 3 years for open deliberation before it was adopted on 24 January, 1950.

Some Lessons from post-conflict countries (with prolonged civil wars, internal strife)

The CMP processes in Timor-Leste and Afghanistan, two of Asia’s post-conflict nations, and, for example, in Somalia, were messy, discordant, full of many compromises or time-consuming:

Afghanistan: Promulgated its latest Constitution; the sixth in the country, on January 4, 2004, more than 2 years after the Afghan Constitutional Commission was established on October 5, 2002. There were many disagreements and some postponements.

Somalia: After the peace agreement in 2004, Somalia began the CMP process with the goal to endorse the Constitution by the end of the five-year transitional period. However, volatile security and political environment has hampered the work and it has not been promulgated yet.

Timor-Leste: Referendum held on Aug 30, 1999. A year later, on Aug 30, 2001, elections held for an assembly to write a constitution. Six months later, on Feb 9, 2002, constitution approved.

Nepal’s experience

The timeline of constitutional development in Nepal goes back to 1768, when the state of Nepal was formed. But it was only 180 years later that the first law of the land, Nepal Sarkar Baidhanik Kanoon, 1948 (2004 B.S.) or Government of Nepal Act 2004 (English/Nepali), was written during the reign of Rana ruler Padma Shumshere (adopted on 1 April, 1948).

After the Rana Constitution, 5 more constitutions have been written and adopted: The Nepal Interim Government Act, 1951 (2007 B.S.) (English/Nepali), which saw 6 amendments, until the first general elections of 1959, when the first truly democratic Constitution– The Constitution of the Kingdom of Nepal, 1959 (2015 B.S.) (English/Nepali) was written and adopted. It was short-lived; less than two years later, King Mahendra introduced an assertive form of monarchy and outlawed political parties. The Constitution of Nepal 1962 (2019 B.S.) (English/Nepali) legitimized a one-party Panchyat rule. It was amended in 1967, 1976, and 1980.

Following the referendum of 1980, political restrictions were eased but political parties were not legalized until after the popular movement of 1990. After the restoration of multi-party democracy and constitutional monarchy, the Constitution of the Kingdom of Nepal, 1990 (2047 B.S.) (English/Nepali) was adopted on Nov. 9, 1990. Following a decade-long Maoist civil war, and a popular movement in mid-April 2006, the Interim Constitution of Nepal 2007(2063 B.S.) was promulgated in January 2007. It suspended monarchy. Owing to many power struggles and grievances, this interim document has been amended as many as 6 times.

Most stable democracies amend their constitutions rather than suspend or scrap them to write a new one. However, Nepal’s experience is steeped in many power struggles, culminating in new writings of Constitutions.

All past Constitutions can be found at sambhidhan.org

 

Timeline: The New Republic & Constitution-making

So far (as of November, 2009), the Constitutional Commission calendar has been amended for the 6^th time.

Sep 26, 2007: The Seven-Party Alliance endorses a republican agenda

Dec 28, 2007: Parliament votes in favor of abolishing monarchy

Apr 10, 2008: Historic Constituent Assembly Elections held

May 27, 2008: Nepal swore in 575 lawmakers

May 28, 2008: Lawmakers vote just before midnight to abolish the 240-year-old Hindu monarchy and establish a secular republic

June 11, 2008: Deposed king Gyanendra leaves palace

June 26, 2008: PM Girija Prasad Koirala resigns to clear the way for the formation of a new coalition government

July 19, 2008:  Lawmakers vote to elect the country’s president; no candidate won the 298 votes necessary

July 21, 2008: Ram Baran Yadav of Nepali Congress (NC) elected the President

July 23, 2008: Subash Nemwang of CPN (UML) unanimously elected the chairman of the Constituent Assembly (CA)

15 Aug, 2008: Pushpa Kamal Dahal “Prachanda” elected Prime Minister of Nepal

Nov 16, 2008: Constitution Assembly endorses schedule for Constitutional Commission, the deadline for promulgation of the constitution on May 28, 2010

Dec 29, 2008: CA makes first amendment to CC calendar

Jan 6, 2009: CA makes second amendment to CC calendar

Jan 13, 2009: Madhav Nepal assigned chair of the CA Constitutional Committee

April 13, 2009: CA makes third amendment to CC calendar

April 29, 2009: CA makes fourth amendment to CC calendar

May 4, 2009: Pushpa Kamal Dahal resigns

May 23, 2009: The Parliament elected CPN-UML leader Madhav Kumar Nepal as the new Prime Minister

July 16, 2009: CA makes fifth amendment to CC calendar

August 28, 2009: Nilamber Acharya from Nepali Congress (NC) elected chair of the Constitution Drafting Commission

Sept 9, 2009: CA makes sixth amendment to CC calendar

Committees of the Constitutional Commission

Works of the committees have not moved smoothly. As of November-end, 2009, as reflected on the Website of the Constitutional Assembly of Nepal, only 4 committees had submitted preliminary draft report and the concept paper. There is the need for the news media to closely scrutinize their works and follow each committee more consistently, substantively and equally.

 Main Constitutional Committee

Constitutional Committee – Preliminary draft and concept paper submitted, submission date not mentioned in the draft. Secretary: TekPrasad Dhungana (Phone # 977-1 5531218 Mobile # 977-9841362086)

 Thematic Committees

National Interest Preservation Committee – No info on concept paper submitted on Friday, May 22, 2009 (98 meetings, 337 hours) Phone # 977-01-4200229 Email: [email protected] Committee Secretary: Krishna Hari Khadka (Phone # 4200229)

Form of the Legislative Body Committee – Concept paper/preliminary draft report not complete (as of Nov 2009). Phone # 977-01-4200124/4200178 Toll Free 1660 01 22344 Email: [email protected] Committee Secretary: Baldev Khadka (Phone # 4200124)

Committee for Determining the Base of Cultural and Social solidarity – No info online, Email: [email protected]

Committee on the Distribution of Natural Resources, Financial Rights and Public Revenue – Preliminary draft and concept paper submitted on Friday, November 27, 2009 (98 meetings, 337 hours). Secretaries: Ram Sharan Ghimire (Phone # 4200206, mobile # 9741013119), Dr. Ravi Sharma Aryal (mobile # 9841417680) Email: [email protected]

Committee for Determining the Structure of Constitutional Bodies. No info on concept paper/preliminary draft report (as of Nov 2009).Phone # 977-01-4211812/4104014 Email: [email protected] or [email protected]

Judicial System Committee – No info on concept paper/preliminary draft report (as of Nov 2009). No contact address except the Email:[email protected]

Committee for Determination of Forms of the Governance of State – No info on concept paper/preliminary draft report (as of Nov 2009). Phone # 977-1-42000134, 977-1-4200344. Email: [email protected] Secretary: Mukunda Sharma (Phone # 977-1-42000134, 977-1-4200344)

State Restructuring Committee – No info on concept paper/preliminary draft report (as of Nov 2009). Phone # 4120094/4200194 Email: [email protected] Sectrary: Thakur Prasad Baral (Phone # 977-14200194 Mobile # 9741013103)

Committee for the Protection of the Fundamental Rights of Minorities and Marginalized Communities – Preliminary draft and final concept paper submitted, submission date not mentioned in the document. No contact address, phone # or email ID given.

Committee on Fundamental Rights and Directive Principles – No info on concept paper/preliminary draft report (as of Nov 2009). Phone # 977-1-4200233 Toll Free 1660 01 22344. Secretary: Toya Nath Bhattarai (Phone # 977-1-4200233). Email:[email protected]

Procedural Committees

Committee on Citizens – No info on concept paper/preliminary draft report (as of Nov 2009). It has two sub-committees— Civil Relation Committee (members’ phone #s given) and Empowerment Committee (Phone # 977-1-4200097 or directly the Secretary:Birendra Bahadur Karki, mobile # 9741013110). Committee email [email protected]

Public Opinion Collection and Coordination Committee – No info on concept paper/preliminary draft report (as of Nov 2009). No contact address except the Email: [email protected]

Capacity Building & Source Management Committee – No info on concept paper/preliminary draft report (as of Nov 2009). Committee Email: [email protected]  Secretary: Birendra Bahadur Karki Phone # # 9741013110

Useful Links on Constitution-building in Nepal

Constitutional Committee, Constituent Assembly of Nepal (official Website): Available (in Nepali language) CC members and staff(their phone numbers included), calendar of CC, its jurisdiction, major decisions, TOR, and report submitted by the Drafting Sub-Committee

The Centre for Constitutional Dialogue (CCD) is a resource centre established to support Nepal’s constitution making process. The CCD is an initiative by the UNDP project on Support to Participatory Constitution Building in Nepal. Includes resources on Constitutions and Constitution-making

UNDP Support to Constitution Building, a critical component of its rule of law work around the world, includes a variety of information on the CMP as well as on topics of special interest such as minorities, civil society and the media. It also archives the news on CMPcovered by Nepal’s media.

IDEA/Nepal has several useful publications and policy analyses, including a glossary of federalism terms and citizens’ guide to creating the new Constitution.

The Comparative Constitutions Project by scholars committed to assisting constitutional design, in collaboration with the United States Institute of Peace, offers a global perspective. They also have a blog.

Some expert references on the Constitution or its making  

Constitution Making in Nepal: Report of a Conference organized by the Constitution Advisory Support Unit, UNDP, 3 – 4 March 2007, Kathmandu, Nepal. [Available here, in PDF format]

Creating the New Constitution: A Guide for Nepali Citizens (Yash Ghai and Jill Cottrell, Eds.), International Institute for Democracy and Electoral Assistance (International IDEA), Feb 2009. Available in Nepali and English; can be downloaded in PDF after registration.

Towards a Lasting Peace in Nepal: The Constitutional Issues, International Crisis Group, Brussels, 15 June, 2005. [Available in HTML and Word]

“Paper by Surya Nath Upadhyaya on Making of the 1990 Constitution,” (Available as Appendix 2, in Constitution Making in Nepal, pp. 45-48).

 Michael Hutt, “Drafting the Nepal Constitution, 1990”, Asian Survey, Vol. 31, No. 11 (Nov., 1991), pp. 1020-1039. [Available on JSTOR, with a subscription only)

Kirsti Samuels, “Post-Conflict Peace-Building and Constitution-Making,” Chicago. Journal of International Law, Vol 6, Number 2, (Winter 2006): 663-682. [Available in PDF]

Links to articles on Constitution and the CA in various Nepali media outlets, collected by Nepalresearch.com (they go back to 2004).

Media Resources for Nepal

Because of their increasingly wider access, outreach and public influence, the media today in Nepal are seen vital in creating awareness on the process and issues of CMP. A vigilant and critical press reports consistently on the constitutional process and interprets its many facets in a balanced manner.

Too often, reporting on the CMP is perceived as a boring enterprise, and experts also criticize reporters’ works as shallow and sensational. The challenge before journalists and writers is how to cover it in a realistic frame, enable a lively and comprehensive debate on the many critical issues of the Constitution, and perhaps more importantly, help define the role of media under the new Constitution.

Although seminars focusing on media role (more often on the provisions for media freedoms) in the CPA have become not too infrequent in the past year, online access (an in many cases offline also) to the proceedings are hardly available. Most of the sponsors of such seminars have Web presence.

■ The Nepal Research website has some links leading to stories on media vis-à-vis the Constitution and the CPA.

■ The Nepal Press Institute (with support from Japan International Cooperation Agency/Nepal- JICA Nepal) recently released Samidhan raMedia (2009) [Constitution and the Media, 2009; 161 pages, price not listed]. The book is not available online.

The Nepali language book includes four essays, three of which relate to the media. The essay “The CMP and the Press” (Kashi RajDahal) dwells on the process and subject matter of the CMP, role of the press in a democracy, the Constitution and press freedom, the role of the press in the CMP (present alternatives, inform the public, form public opinion on nature of democracy, state structure, form of government, electoral system, etc.). This is a normative essay focusing on the theoretical foundations of democracy.

The paper “Inclusion and the Mass Media” (Kundan Aryal) traces the roots of inclusiveness in Nepal, common commitments and issues of concern, political communication and Nepali mass media. Some empirical material on how the Nepali press covers politics (has not taken as much initiative in fostering the debate as it did in calling for consolidation of democracy and political inclusion, the coverage is ritualistic, shallow, driven by political speeches, at analysis on the various committees is skewed).

“People’s Right to Information” (Agni Kharel & Tanka Prasad Dulal) offers perspectives on global and local developments in the RTI, provisions in the Constitution, and examines some cases.

■ A summary of the seminar on the role of media in Constitution-making, organized by Press Chautari Nepal (PC) with support from Friedrich Ebert Stiftung, Nepal, 4 July 2009, Nagarkot.

■ A case from EU: Julie Firmstone and Paul Statham examine social actors, their communicative links, level of participation and debates during the ratification of the EU Constitutional Treaty in the British media [Available in PDF].

Expert sources

Too often, in Nepal, politicians become news sources rather than experts. While lawmakers (as chairs of committees) and party leaders make good news sources for their experiences and political positions, the best journalistic practice to reach a better and objective version of a truth is to quote various experts on a given field of knowledge.

The CCD’s Roster of Experts may serve as a beginning point. Unfortunately, contact addresses for these experts are not given, and they also have no page for media outreach. For general info, the CCD can be contacted 977-1-4785998 / 4785486 / 4785466. Facsimile: 977-1-4785487. E-mail: [email protected]

The Society of Constitutional and Parliamentary Exercises (SCOPE) Website also leads to some expert sources. The executive board on their Consortium of Constitutional Experts (CONCOE) has some names (but without contact addresses). They can be reached at 00 977 1) 4410624 or 4411303. Email: [email protected]

Links of interest

Nepal Constituent Assembly Portal (CA Portal), Nepal Law Commission (NLC, Constitution page here), Supreme Court of Nepal (SC), Ministry of Law, Justice and Parliamentary Affairs (MLJPA), Nepal Bar Association (NBA). The US-based non-profit, constitution.org, has many resources covering Constitutions)

The Media in Post-Conflict Societies (MPCS) from Center for International Media Assistance (CIMA), and

Media in Conflict and Post-Conflict Situations (MCPCS/UNESCO) resources for media.

To add resources or and to update this inventory, please email us at [email protected]

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