On September 20, 2015, the new constitution of Nepal was promulgated despite half of the country protesting against it. The very next day Supreme court Advocate Dipendra Jha suggested the amendments to make the constitution as per the previous agreements done with the protesting groups. The English translation of the proposed amendment by Mr. Jha was done by Mr. Nayan P. Sindhuliya and posted on his facebook post. The same has been published here from the permission from him. Here:
Dipendra Jha has done more to ensure a legal sanity than anyone else in Nepal in recent years. He quickly made some notes about some of the salient features of the new constitution that were problematic. Here is my translation of his recommended amendments. PLEASE NOTE that neither his notes, nor my translation, is official. It is just an attempt to ensure that our discourse is little more grounded. Please direct your specific questions to either Dipendra Dai or me. Cheers!
Suggested Amendments to the Nepal Constitution, 2072
Preamble, Definition, Citizenship, and Fundamental Rights:
• Include the phrase ‘Madhesh Andolan‘ or ‘Madhesh Uprising‘ in the preamble
• Article 4: ‘Secularism’ is included in the definition of the state, but the explanatory note defines it as “the preservation of ancient religious culture, including religious and cultural freedom”.
• Article 11: Provision of citizenship through father ‘OR’ mother is mentioned, but in articles 11(6) and 11(7) it does not accept the independent existence of women passing. It therefore renders women as second-class citizens. The child of a Nepali woman married to a foreigner will only get ‘naturalized’ citizenship (as opposed to ‘by descent’). In order to pass citizenship by descent, the father must be a Nepali citizen.
• Article 289(1): This article prevents the naturalized citizens from holding prominent positions like the President, Vice-President, Prime Minister, Deputy Prime Minister, Chief Justice, Speaker of the Lower House, Chairman of the Upper House, Chairman of the Province, Chief Minister of the Province, Speaker of the Provincial Parliament, and the security heads. This implies that foreign women married to Nepali men will not be able to hold these positions.
• Article 289(2): Except for the aforementioned positions, in order for naturalized citizens to hold other constitutional positions, they will have to have resided in Nepal for at least five years.
• Article 38: Proportional inclusion of women has been ensured; same provision needs to be ensured for Madhesis, Dalits, Janajatis, Muslims and Tharus.
• Article 40: Proportional inclusion of Dalits has been ensured; but in the article pertaining to Dalits, it says the inclusion will be ensured according to ‘existing laws’. The phrase ‘existing laws’ needs to be removed.
• Article 42: On the question of social justice it says, “Participation in the state apparatus will be ensured on the basis of ‘theory of inclusion’.” The word ‘proportional’ has to be retained as in article 21 of the Interim Constitution.
State Structure and the Devolution of State Power
• Annex 4 of Article 56(3) provides for seven federal provinces. Under this, the whole of Madhesh is divided into six different provinces. Jhapa, Morang and Sunsari districts in the far-east should be included in Province 2; seven Terai districts from Nawalparasi to Kailali should be included in the Tharuhat/Avadh Province.
• Since Article 56(2) ensures a three-tiered state structure consisting of a Center, Provinces, and Local Units, the provision for Districts should be removed from Article 56(4).
Parliament, Electoral System, and the Governance Structure
• In Article 84(1)(a), the election constituencies for 165 members of lower house directly elected through First-past-the-post (FPTP) should be determined on the basis of voting population. Right now, it will be determined on the basis of geography and population. Special provision could be adopted for remote districts like Manang, and the districts in Karnali.
• In Article 84(1)(b), the provision for the Proportional Representation (PR) in the lower house should remain the same as provided under the Interim Constitution, Article 66(3)(b).
• In Article 84(1)(b), under PR in the lower house, there’s a provision for the representation of eight groups – Women, Dalits, Janajatis, Khasa-Aryas (Read: Bahun-Chhetris), Madhesis, Tharus, Muslims, and Underprivileged. The clause relating to the ‘Khasa-Arya’ group and the corresponding explanatory note should be removed.
• According to Article 86(2), of the 59 MPs to be elected through PR, there’s a provision for eight MPs each from the seven federal provinces – a total of 56 MPs. Of eight MPs from each province, it is commendable that at least three have to be women; at least one has to be a person living with disability; and at least one has to be Dalit. But it has to be revised in order to reflect the size of the population – it is recommended that there be at least ONE MP from each state, and the rest be proportional to the population in each province.
• There’s a provision of mixed electoral system for the Federation (Center) and the Provinces, but not for the Local Units. (The provision for proportional representation should be retained at the local level also.)
• It has been decided that the Commission for the Determination of Electoral Constituencies will reassess the constituencies every twenty years. This has to be done every ten years. [Article 286(1)(2)]
• It is commendable, and a positive achievement, that the executive branch (cabinet) at the central level (Federation) – Article 76(9) – and the provincial level (Provinces) – Article 168(9) – will be formed on the basis of the theory of inclusion.
• Under the current statute, there’s no provision for the executive branch (cabinet) at the central level (Federation) (Article 82(2)), and the provincial level (Provinces) (Article 174(2))to be taken to the court in instances of the breach of their codes of conduct. This needs to be amended and there should be a provision for any breach of the codes of conduct to be taken to the civilian court(s).
Judiciary, Constitutional Commission
• Part 11 – Judiciary: Since this constitution already determines the federal structure of the state having been delineated between the center (Federation), Provinces, and the Local Units, the phrase “district courts” has to be removed, and replaced with “local courts”.
• There’s no provision for inclusionary practice while nominating justices in the courts; this has to be amended ensuring an inclusive nomination of the justices. [Articles 129(1), 139(3)]
• There is a provision that the determination of the number of justices, their appointment, recommendation for their promotions, and their transfers will be done on the basis of the ‘existing federal laws’. The authority for the determination of the numbers, and appointment of justices should be carried out on the basis of provincial laws.
• Since Provincial Court has been designated as the court of records (Article 139), it should also have the jurisdiction to review the cases and decide every case other than that pertaining to cases deserving life sentences.
• The statute ensures separate constitutional commissions for Women (Article 252), Dalits (Article 255), inclusion (Article 258), Janajatis (Article 261), Madhesis (Article 262), Tharus (Article 263), and Muslims (Article 264). It also adds that these commissions can be reviewed every ten years (Article 265). The provision for review should be omitted and these commissions should be made permanent.
• Chief Minister from each province should also be included as a member of the national Security Council. [Article 266]
• Article 267 guarantees admissions of Women, Dalits, Marginalized Janajatis, Khas-Arya, Madhesis, Tharus, Muslims, and people from underprivileged backgrounds in Nepal Army according to theory of equity and inclusion; but this fails to take into account the collective admission of Madhesis according to the spirit of 8-point agreement between Madhesi Forum and Nepal government.
• It is commendable that the recruitment of all sections of the citizenry into the civil service will be based on the theory of proportional inclusion.
• Article 283, which ensures inclusion in constitutional bodies is commendable. It also ensures inclusion in nominations of ambassadors (Article 282); this is definitely positive.
Advocate Dipendra Jha
Translated by Nayan P. Sindhuliya.