The Alternative IDEA: 12 Point Understanding the Background of TRC: 12 Point Understanding the Background of TRC Khimlal Devkota The discussion of Transitional...
posted by KDevkota @ September 30, 2024
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12 Point Understanding the Background of TRC
Khimlal
Devkota
It is a well-known fact
that the People's War led by the Maoist party in Nepal lasted for ten years.
During the same period, there was one crisis after another in the parliamentary
parties of that time. At this time, the monarchy was able to seize the
opportunity. The Royal Massacres (Durwar Hatyakanda) became an event that transformed
the Nepali politics of this period. After the death of King Birendra, Gyanendra
became a king and sat on the throne, or Gaddinshin. The Popular opinion, who
believed the incarnation of lord Vishnu also came to the conclusion that
Gyanendra is not a king but a murderer. It was established that the real king
was killed. In this situation, the monarchy, which is said to have been
constitutionalized by the 1990s Constitution, dared to misuse Article
127 of the same constitution. Using this means, they dissolved the parliament,
dissolved the government, and dissolved the constitution at a time. The king
himself became the chairman of the council of ministers. There was an unofficially
announced band against the parties. The leaders were put under house
arrest and many leaders were already in custody. It was in this environment
that the triangular power struggle between the king, the parliamentary parties, and the Maoists became two-sided after the Royal massacre. As a result, a twelve-point understanding was signed. The 12-point Understanding between the
then seven parties and CPN-Maoist, announced on 22 November 2005, stated as
follows:
|
5.
The CPN-Maoist has expressed its commitment to create an environment in which
the people and the leaders and workers of the political parties who were
dispossessed during the armed conflict can return to their respective places
with respect. Restoring unjustly occupied houses, lands, and assets and allowing
them to carry out political activities of illegal obstruction. 6.
By self-evaluation and self-criticism of the mistakes and weaknesses of the
past, the CPN-Maoist has expressed its commitment not to allow mistakes and
weaknesses to happen in the future. 7. While
self-evaluating the mistakes and weaknesses made by the government and
parliament in the past, seven political parties have expressed their
commitment not to repeat such mistakes and weaknesses in the future. In section 12, a common
commitment has been expressed to investigate the incidents of inappropriate
behavior between the parties and to investigate from any side and if found
guilty, to take action and to inform publicly. |
It has been accepted that
the struggle between autocratic monarchy and democracy has reached its peak in
the historic 12-point Understanding. It has been reiterated in the same
document that it is the need of the day to resolve the 10-year-old armed
conflict through progressive political means and establish peace. Similarly, it
has been accepted for the first time that political, economic, cultural,
social, class, caste, gender, and region are the main problems of Nepali
society. To solve this problem, it was accepted that it was necessary
to end the autocratic monarchy and re-establish democracy. In addition, it is
important to remember today that the implementation of the concept of democracy
through progressive restructuring of the state was the main purpose of the
agreement.
At that time, the seven
parties agreed to restore the parliament through the movement, hold talks with
the Maoists, and hold elections for the Constituent Assembly to re-establish
democracy. The Maoists were confident that the goal could be achieved by
holding a political conference among the agitating democratic forces, forming
an interim government, and holding elections for the Constituent Assembly. Even
though there were differences in the process of both parties, there was a
consensus that the people's movement was the only option to achieve this goal.
In this way, the main
goal of the 12-point understanding, which is the foundation of the people's
movement, is the end of totalitarianism. It seems that there is a consensus
that the means of this is the people's movement. In addition to this, to achieve the main goal in this document, it is clear that the Maoists will
attack through people's war and the seven parties will focus their attacks
against the despotic monarchy through peaceful movement.
An agreement has been
reached to end the autocratic monarchy and establish a full democracy by creating
a storm of nationwide democratic movement against the autocratic monarchy by
concentrating the attacks of all powers from their respective positions.
In this context, along
with the peace talks, it has been allowed to criticize the behavior and behavior
of the parties in the past. Both sides promised to investigate past mistakes
and take action if found guilty, It is true. Not only this, it is also
mentioned that the parties will self-criticize their mistakes in the past and
promise not to repeat the mistakes of the past. To make it more clear, it has
been openly accepted that the Maoists and Seven Parties will self-criticize the
mistakes made in the parliament and the government during the movement.
The first priority was
the end of autocracy and the restoration of democracy in the 12 points of Understanding, which was considered as the starting point for conflict
resolution. Struggle and movement in their own way were said to be the means to
achieve that goal. This means that there was a tacit agreement that the
Maoists would be armed and the seven parties would carry out a peaceful
protest. There is no doubt about the election of the Constituent Assembly
through these two methods of agitation. Since the people's participation in the
movement is necessary and the past of the parties is not good, a commitment was
expressed to reassure the people of self-criticism of past mistakes and not to
repeat the mistakes made in the past, whether it was during the war or when
they were in the parliament or the government.
In this way, the goal of
the 12 Points Understanding was the end of absolutism and the Constituent
Assembly, to convince the people, it was promised not to repeat the
mistakes of the past. It was said to
adopt all the necessary procedures for the success of the movement as a
priority. The condition of which was only to make the movement successful. In
the second priority, a written commitment to investigate the shortcomings and
weaknesses committed by the Maoists during the war and to investigate the
mistakes and weaknesses committed by the seven-party parliament and government
and to punish those found guilty was also made in this agreement.
According to the 12
points Understanding, the Maoist purges during the war and the terror bill issued
by the seven parties in the parliament and the government, based on that bill,
the declaration of emergency, approval and extension of the emergency period,
including the work of declaring a terrorist and setting a price for the head,
taking the head and carrying a bag full of money, etc. There was also the
matter of conducting an investigation and making it public if found guilty.
This thing came in the
form of establishing the truth in the comprehensive peace agreement and
creating an atmosphere of harmony in the society. And today, the official
journey of "TRC", which is the most talked about, began. The seed of
TRC was planted in Nepal with the slogan of establishing the truth about the
events that took place during the war and creating an environment of
reconciliation in the society. Although the late Girija Prasad Koirala, one of
the heroes of the peace talks, was not like a wartime scale, he was adamant
that people should focus on making the people's movement successful and should
adopt the principle of forgetting the past and forgiving. Another hero of the
peace talks, Prachanda, himself admits that he used to argue that those who
committed excesses during the people's war should be investigated and brought
to justice. (Detailed Peace Agreement and TRC Provisions in Interim
Constitution and so on in another series)
posted by KDevkota @ September 30, 2024
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The Alternative IDEA: Political Leadership and Post-Constitutional Debat...: Political Leadership and Post-Constitutional Debate on State Restructuring in Nepal -Khimlal Devkota [1] Abstract Nepali pol...
posted by KDevkota @ September 28, 2024
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The Alternative IDEA: Political Leadership and Post-Constitutional Debat...: Political Leadership and Post-Constitutional Debate on State Restructuring in Nepal -Khimlal Devkota [1] Abstract Nepali pol...
posted by KDevkota @ September 28, 2024
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The Alternative IDEA: Political Leadership and Post-Constitutional Debat...: Political Leadership and Post-Constitutional Debate on State Restructuring in Nepal -Khimlal Devkota [1] Abstract Nepali pol...
posted by KDevkota @ September 28, 2024
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-Khimlal Devkota[1]
Nepali politics and leadership were
ruled by a centralized, unitary, monarchial, and exclusionary Hindu Kingdom
before 2006. As a result of a decade-long “People war” as well as the Maoist
movement, the country has been declared as republican, federal, secular, and
inclusive. The root causes of the conflicts are class, caste, gender, and
regional disparities. The violent conflict was political and it was purely a byproduct
of the discriminatory state structure. It was considered that the federalization
of the state is a prime solution. The peace process was initiated with a firm
commitment of forward-looking state restructuring. The paper tries to identify
the federalization debate among the political parties during the peace process.
This paper tries to capture the debates from both federalists and
anti-federalists. The paper also tries to compare the expectations and reality
with lapses and gaps. This study is based on available information, literature, and political statements, election manifestos, and other related documents.
Qualitative data has been used. A descriptive and analytical method has been
applied to assess the overall process of federal design. Data/information has
been obtained from the historical documents of political parties, government repositories
and views and ideas expressed by different stakeholders on the federalization
of the state. Finally, some recommendations to the concerned authority for
meeting the expectations within the constitutional framework have been made.
The draft constitution prepared by 1st Constituent Assembly had adopted the
spirit of identity. Identity was the basis of the federal design and a
bottom-line of the federalist section of society. However, in the
constitution, the issue of identity-based federalism has been badly diluted.
There is a huge gap between the pre and post-consultation stages. The challenge
now is to mitigate the principles of federalism and simultaneously implement
the Constitution. The Constitution is a compromised document and therefore my
recommendation is again compromised for implementation of Constitution and
federalism
Keywords:
leadership, federalism, state restructuring, identity politics,
post-constitutional debate, conflict and peace.
Leadership
always leads the organization, society, and states designed by them. For
leadership state is an authority of power. Based on power, whether it is
centralized or federalized the state is called Unitary or Federal. Generally, a
Unitary state concentrates power in the center and the federal believes in the devolution of power to the federal units. Federal systems do this by
distributing power among general and constituent governments in a manner
designed to protect the existence and authority of all the
governments(Devkota,2014). Countries around the
world can be divided in to two in orders to power concentration or devolution
of its nature is federal and unitary. Federalism and its kindred terms—e.g.,
“federal” —are used, most broadly, to describe the mode of political
organization that unites separate polities within an overarching political
system so as to allow each to maintain its fundamental political integrity.
Federal systems do this by distributing power among general and constituent
governments in a manner designed to protect the existence and authority of all
the governments.[2] According to Federalism Encyclopedia federal states are constituted by two different concepts. The federal idea was conceived as a means to
unite a people already linked by bonds of nationality through the distribution of
political power among the nation’s constituent units or by conceived as a means
to unify diverse peoples for important but limited purposes, without disrupting
their primary ties to the individual policies that constitute the federal
system. Nepal was declared as a federal democratic republican country.
Unitary and Centralized states have changed into federal states is a huge task in Nepali political history. Unitary to federal, Monarchy to republican,
Hindu kingdom to secularism, and exclusionary to inclusion(Constitution
of Nepal 2015) is major achievements of Nepali
politics. A country itself being unitary and centralized or federalist it
doesn’t mean any different for the general public and intellectual communities.
Countries with unitary and centralized natures or federal they are doing their
best in their context. There are roughly 25
federal countries in the world today, which together represent 40 percent of
the world's population [3]
and rest of others are unitary and centralized. Unitary and federal is a
character of the state structure. Any characteristics can be accepting any
country there is no comments and recommendations. However, assessments of the
very nature of the state and its changing pattern and debate in order to
shape the structure of the country will be very interesting for academicians,
practitioners and researchers. Only the analysis of the process of shaping state
structure of Nepal will be the main objective of the paper. Having limits
within the objective of this paper I have done an analysis pre-constitution debate
during-constitution debate and post-constitution debate of federalism. Most
of the references have been taken from the archival materials as well as my own
experiences. Some of the facts have been collected from conversations.
State
restructuring means the total transformation of the state rather than territorial
restructuring.
The
basic understanding of the state restructuring was unitary structure has to be
change into federal structure. Therefore, the federalism debate is part and partial
of the state restructuring debate. Now the paper mainly highlights on
constitution-making, federalism and state restructuring. The structure of the
paper is divided into seven sections including the introduction. The first section
introduces federal debate in Nepal in general and specifically expectations and
reality. The second section is on briefing about Nepali context which is unique
journey from unitary to federalism. The third section of the research is real
debate between federalist and anti-federalists with their logic. The fourth
section has tried to recap the expectations of federalism. The fifth section deals with reality in practice. The sixth section has explained the gap between
expectation and reality, mainly pre-federalism and federal structure. The final
section has concluded the paper with recommendations and limitations of the paper.
For
long period Nepal has an identity of the unitary and centralized state.
Under the unitary and centralized state country has moved ahead until the
constitution of 1990s. Nepal’s Maoist movement had made cultural rights and ethnic-regional
federalism a central issue in their struggle. When launching a ‘People’s War’
in 1996, their 40-point demand, political manifesto included autonomous areas
for ethnic minorities where they constituted a majority, equal standing for all
languages and the right to education in the mother tongue. As the insurgency
developed, the Maoists established ethnic fronts named after the principal
nationality groups, proposed a federal structure based on nine autonomous
regions mainly based on ethnic criteria, and set up presumptive ‘people’s
governments’ for these nine.(Suhrke,
2014) After
that along with Maoist movement federalism debate came in front. Although issue
of federalism has been debating number of times since very beginning but the
status of debate was remaining only in as an intellectual debate. When Maoist
movement took place then the issue of the federalism debate came in front,
although during the series of interactions with the leaders of the political
parties, Prachand was also able to convince them on two of the major Maoist
demand-holding the Constituent Assembly election and abolishing the monarchy
Constitution
is a fundamental law of the land. Nepal has never been without constitution.
The very fact is that Nepal has a 7th constitution within the seven
decade it means one constitution for one decade in on average. However, the
only the last constitution of Nepal is made and promulgated by peoples elected
constituent assembly. All other constitutions were promulgated by king. 1990s
constitution is also drafted by group of experts but promulgated by the king.
Interim constitution of Nepal 2006 was also drafted by experts appointed by the
negotiation team and indorsed by parliament and approved by interim parliament.
The very differences with other constitutions are all previous constitutions
are unitary and this is the constitution is federal one. The constitutional debate
was not because of absence of constitution but because of the constitution was
not made by people’s representative and the constitution was not federal.
Federal constitution is only after long and rigorous debate. The nature of the
debate was basically for and against of the federalism. The only secondary
debate was what kind of federalism.
Constitution is a fundamental law of the land and People are
sovereign though sovereign people have never ever promulgated the constitution.
Peoples level engagement were never been made any provision during the
constitution making and promulgation process. In the constitutional history of
Nepal first constitution was promulgated in 1947 during the time of Chandra Samser
Rana though it was never implemented. Second constitution was promulgated in
2007 in the name of Nepal interim constitution 1950 by the then king. 3rd
constitution was promulgated in 1958 which was well drafted by nominated
personalities with the help of Sir Ivor Jennings from UK. The constitution of
Nepal was issued in 1962 with the introducing the party less panchayat system
by the king Mahendra. Political parties were band and fought against the
panchayat regime led by king Mahendra and later on Birendra. Number of
constitutional amendments has been made to accommodate dissent voices.
Referendum also conducted though constitutional system has not longer than
1990s. After the people’s movement of 1990 the drafting committee has announced
by King for constitution drafting. 1990s constitution also failed to address
the aspiration of the peoples and political parties. After promulgation of the constitution
revolutionary section of the society were not satisfied. They thought that
again compromise with the king? Continuous fighting against the king, again
after compromise was the key to create another compulsion task for
revolutionaries to initiation of revolution against the king. The result Maoist
people’s war declared through 40 points demand. The main demand was
constitution from constituent assembly and federalism with autonomy.
Negotiation process has been initiated in the spirit of restructuring of the
state mentioning in decision of top brass in November 8 2006
In the preamble of the Comprehensive Peace Accord has
agreed upon, that the root cause of the conflicts are class, caste, gender and
regional disparities to solve it forward looking state restructuring is a must
In a chapter of obligation of the state the nature of
state restructuring has been mentioned as to make an inclusive, democratic and
progressive restructuring of the State, by ending the existing centralized and
unitary structure of the State so as to address the problems including those of
women, Dalit, indigenous people, Madhesi, oppressed, excluded and
minority communities and backward regions, while at the same time doing away
with discrimination based on class, caste, language, gender, culture, religion
and region; (interim constitution,2007).
Anti-federalist
camp dominated by status-quest. Anti- federalist considered mainly anti-change
with some exceptions. Anti-federalist logics were also too hard that mean
federalist definitely divides the country. It is imported agenda and those who
raised the agenda of federalism they are anti-nationalists and who are badly
misused by the foreign power. These are the form believe of the
anti-federalist. To proving their logic most of the logic was small country,
having diversity it has to be remain unitary forever. If we adopt federalism
country will die sooner or later it was a strong logic of the anti-federalists.
During the time of negotiation, the agenda has been exposed to all. Those who
really wanted to success the negotiation they are more favor and wisely in
favor of federalism and those who really wanted to break the negotiation raising
the agenda of anti-nationalist and division of the country and country will be
dying. The strong logic of the anti-federalists is federalism has not been
mentioned even in 40-points demands, 12-point understanding and Interim
Constitution. Surprisingly the agenda of federalism has interred in Nepali
politics by foreign forces to divide the country.
After
the success of the negotiation election of constituent assembly has been taking
place. Constitution has been amended and federation has been declared. Some
feature of the federation also has been mentioned in the interim constitution.
For the purpose of the constitution drafting according to rules of procedure
has managed 11 thematic committees and 3 procedural committees. Thematic
committee’s deals in their own jurisdiction on concept note and preliminary
draft based on people’s consultation. All committees submit their task to the
constitutional committee for final draft of the constitution. In this phase
also debate was on again in as anti-federalist or pro-federalist. There shall
be made progressive restructuring of the State with inclusive, democratic
federal system of governance, by doing away with the centralized and unitary
structure of the State so as to end discriminations based on class, caste,
language, gender, culture, religion and region.(interim
constitution,2007).
The
opening paragraph of the State restructuring and distribution of state power
committee of the Constituent Assembly was as following;
“The
structure of a country or a state is normally unchangeable. However, it can be
and is changed as per the need of the rulers or the wishes of the people. To
rethink about the vertical structure of the governing system and the structure
and the role of the institutions that exist horizontally under the existing
governing model is the subject of restructuring the state. The nature of
existing power structure in Nepal is unitary and the form of governance
centralized. In view of the sentiments expressed in course of the People's
Movement and on the basis of the characteristics and unique features of the
Nepalese society and the aspirations of the communities left behind, the nature
of Nepalese nation state will be based on federalism and the governing system
in the structure of self-rule with the rights and responsibilities among the
governments of various tires clearly defined. In this sense, the building of
new institutions in the form of integrated, indivisible and sovereign nation on
the basis of geographical, caste-based, linguistic, cultural and regional
autonomy is understood as restructuring of the state. The restructuring of the
state does not mean the carving out of a new state; it is rather the
transformation of the existing structure. Thus, in the present context of
Nepal, the building of new institutions by resetting or re-demarcating the
internal boundaries (of development regions, districts, municipalities and
villages) keeping intact the national border can be understood as restructuring
of the state.”
Diversity within the country is the main
foundation of federalism. However, political need necessitates a federal
structure. In spite of this, countries big or small, rich or poor have embraced
a federal model. Only 28 countries in the world have adopted a federal system.
In terms of population and geographical area, though, about 40 per cent of the
globe is covered by federal system.(Committee
report 2010., p. 70). With this statement the committee report
has been made. Pro-federalists always felt that federal system is the best
system among the other and will be very helpful to solve all the problems.
Politics is a power in the federations power will be devolve. Having the bitter
experiences of the unitary and centralized system federalists are never ever
ready to give up their ideas. Federalist’s idea is the best among the all then
never ever ready to listen idea of maintaining unitary and centralized system.
Pro-federalists are mainly identity-based federation. According to them after finishing
the constitution then only after all indigenous, marginalized and oppressed and
suppressed class will be rewarded. The main problem of the conflict was class,
caste, gender and territorial disparities. All the root cause of the conflict
will be address by the federalism. Identity based federalism will provide
access to power and justice at a time to all marginalized communities. In their
dominated area they will have their own government; they will have chosen their
own language and protection of the culture. Development work also can be done
by their choice and wish.
Federalism
is not the solution of all and it is not fit for Nepal was a main logic of the
anti-federalists. When federalist raise the issue of autonomy anti-federalists’
questioned country will survive? When question of self-government then they are
questioning the functioning capacity of the local’s provincial or other than center?
Provincial and local government will be easily influenced against the national
interest. National interest will be weakening and nationality will be in
threat.
Post-constitutional
debate on federalism is different that pre-constitutional debate. Constitution
promulgated with huge protest of the anti-federalist. Anti-federalist stand
always that federalism is not our own agenda it is imported one and it is for
disintegration of the country. Pro-federalist stand always that federalism is
one hundred percent our own agenda and it will be helpful to manage our
diversities. The final version of the constitution came up with modification.
Mostly federalist wanted to have identity-based federalism and anti-federalist
are dead against federalism and if any how federalism territorial based
federalism would be considerable. With this them of the discussion most of the
logic of federalism are as mentioned in followings;
Post-federalists are in favor of the constitution of
federal democratic republican. Finally, they got it, however the federal design
is not as per their expectation. Mostly pro-federalist was in line with identity-based
federalism. Identity based federalism mean more or less understood as ethnic
federalism. Whereas, pro-federalist defined in favor of nationalities-based
federalism. Nationality means a group of people with common language common
culture, common territory and common economic status such a settlement known as
nationality
“In the restructuring of the federal state, formation
of autonomous and self-governed provinces is necessary. While doing so, the
following points should be considered: Regions with geographical continuity and
ethnic concentration should be placed within a single unit as far as possible
Regions with certain lingual concentration should be placed in the same unit
Regions with certain cultural concentration should be kept in the same unit
Regional disparity should be taken into consideration while determining the
federal regions Emphasis should be placed on the historical and communal
features.”(Committee Report, 2010, p. 88)
The
very problem of the pro-federalists is the federal structure got it different
than envisioned earlier. The constitution implementation commission is not in
place for effective implementation of the constitution. Power struggle is
obvious which happening always. The legal arrangement has to be made by
converted parliament after the promulgation of the constitution but it was not
done properly.[5]
Federalists
are also not happy with this federal design because of it is not identity based
federal structure. As the same way anti-federalists are also not happy with
this federal design because country will not sustain the burden of federalism.
The anti-federalists voiced always sooner or later the federal structure will
be ended. It is not because of its nature but it is because of it is not our
agenda. It will not be able to cope in our society. The agenda of federalism
were never ever during the time of movement.
Principles of the federalism were envisioned during
the time of constitutional debate. Perfect federation has been discussing.
Autonomy is a key of the federal structure. Self-rule and shared rules are the
core of the federalized process. List of the power are fixed in the time of
preliminary draft. Exclusive power and concurrent power were in placing with
well designed. Right to self-determination and special rights for oppressed class
gender caste and territory was hot topics. Special regions also were in
envisioned. Numbers of expectation were disseminated during the time of
constitution making. The main principles have been fixed identity and viability
for federations. Identity and viability-based principles will be followed for
federal design. Five criteria of identity and four bases of viability were in
very popular during the time of constitution drafting. Regions with
geographical continuity and ethnic concentration should be placed within a
single unit as far as possible. Regions with certain lingual concentration
should be placed in the same unit, Regions with certain cultural concentration
should be kept in the same unit, Regional disparity should be taken into
consideration while determining the federal regions, and Emphasis should be
placed on the historical and communal features. Besides, economic capability
and potential, availability of natural resources and means and administrative
accessibility should be considered in this way, each province of Nepal will
have the dominance of a major ethnic group, a major lingual group and a major
cultural group. In the provinces thus formed, a situation may arise where a
regional language may have to be used for official purpose. These were the
expectations during the constitution drafting. However final constitution is
not able to be that way. For the purpose of the constitution failed to meet by
pro-federalist themselves. Therefore, they are in huge trouble.
When constitution promulgated the question of identity
has been diluted. Identity and viability-based federalism itself diluted. Actually,
federalism adopted territorial based only neither it has considered identity
nor viability. Federal design has been done mainly territorial basis and almost
continuation of the past. The very design has been done by continuation of the
past structure.
The
preamble of the constitution has mentioning, “Ending all forms of
discrimination and oppression created by the feudalistic, autocratic,
centralized, unitary system of governance”, (Constitution
of Nepal, 2015) The structure of the state has been
mentioned in the constitution part 5 article 56. According to the
constitutional provision the structure of State shall be as following; “(1) the
main structure of the Federal Democratic Republic of Nepal shall be of three
levels, namely the Federation, the State and the Local level. (2) The
Federation, State and Local levels shall exercise the power of State of Nepal
pursuant to this Constitution and law. (3) There shall be States consisting of
the Districts as mentioned in Schedule-4 existing in Nepal at the time of
commencement of this Constitution.” (Constitution
of Nepal 2015, p. 44) In addition to that article 52 of
the constitution has mentioned the state obligation which is very relevant to
new mode of state restructuring. “It shall be the obligation of the State to
make Nepal a prosperous and affluent country by protecting and promoting
fundamental rights and human rights, pursuing directive principles of the State
and gradually implementing policies of the State, while keeping intact the
freedom, sovereignty, territorial integrity and independence of Nepal.”(Constitution
of Nepal 2015, p. 43).
In reality there are no any sign of basis of federal
structure naming and boundary of the provinces. The principles of Identity and
viability have been diluted badly. Most of the provinces are made almost
continuation of the past structure. Forward looking state restructuring limited
only in debate and intellectual exercise. Earlier it had discussed and formally
passed by the committee 14 provinces with the basis of identity and viability.
But finally came up with 7 provinces without the basis of identity and
viability. Envisioned and product of the constitution in relation to provinces
are quite non-comparable in order to principles, basis and perspectives.
Along with the committee report the government of
Nepal had established a high-level commission on state restructuring in
November, 2011. The commission has submitted the report with 10+1 provinces by
majority members of six out of nine
Ethnic/communal, Lingual ,Cultural ,Geographical/
continuity of regional identities , Continuity to historical identities and
basis of capacity, Economic inter-relationship and capability, Infrastructure
development and potential , Availability of natural resources and means , Administrative
accessibility. The boarder issue still in debate and naming except few provinces’
others are failed. Those provinces that have given the name of the provinces,
neither as per the committee’s report nor as per principles of identity based.
Mostly the name has given either religious or the name of the river.
The number fourteen was recommended but now came up
with seven without any special (special, autonomous and protected) region.
Envisioning number was on the basis of identity and viability. At least one
percent of the ethnic community deserved to get their state. Therefore, Sherpa
and Jaden provinces also had proposed. Based on identity the committee has
proposed 23 different autonomous region with the rights of autonomy, self-rule
and identity
The report has mentioned that, there will be a constitutional
provision to carve out a special region/autonomous region/protected region
characterized by uniform or multi-cultural identity, wherever it is so deemed
necessary, based on the density of caste/language/community as recommended by
the province, proposed by the federal government and approved by the federal
legislature. In reality there is no provision in the constitution on special
structure however local government has given a right to establish the special
structure on their own territory.
Based
on my research, my conclusion is that, the constitution of Nepal is a rare
product of compromise and federal structure is also not the exception. Maoist
movement has played vital role for the state restructuring issues therefore it
has taken as achievement in the Marxist history, whereas Marx propounded theory; Lenin
implemented in Russia as an insurrection; Mao did in China as a protracted
people’s war. In Nepal decided to develop MLM and fusion of both. The tangible
achievements of the People's war can be presented state restructuring along
with Interim Constitution, Constituent Assembly election, Inclusion and Republic
7.1 Limitation of the Paper
The
research is based on political debate in constituent assembly, their
committee’s reports and views expressed by the leaders. Using such limited
resources findings may not be fit for generalization. Limited time and
resources may not supplement the ideas. Even though based on formal debate of
the then constituent assembly, their reports and views of the leaders are most
reliable source.
7.2 Findings
Having
not only different but opposite schooling the parties were able to manage their
differences based on compromise formula. The political parties of Nepal
belonging to different political ideologies fought with each other for a very
long period of time. Finally, political parties of Nepal chose the way of
negotiation for conflict transformation and hence we have a new constitution
made by the representatives of the people as a precious product. They agreed
upon to end armed struggle by addressing the root cause of the conflict with
peaceful means. None of the parties are in a position of winning and losing but
both sides adopted a win-win strategy from the negotiation table. Based on the
win-win negotiating strategy country achieved the people’s constitution. The
parties have to understand that this is the best product of the situation. This
is not only a piece of paper as a constitution but it is the best tool of peace
and conflict transformation. It is a huge peace dividend for the country and
people which resolved the decade long arms conflict. Recommendations The
research based on the findings that compromise is only the solution to
implementation of the constitution. If constitution is made by compromise then
implementation strategies also have to be developed along with the same.
Addressing the dissent voices through amendment of the constitution will enrich
the constitution and fulfill the demand of the masses of the people. This is a
prime duty of the leadership including main stakeholders of the country as well
as academia of the country and abroad to sustain proper implementation of rare
product as federalism and constitution. Until and unless federalizing the
party’s federalization of the state will not be completed. Therefore, the first
and foremost duty of the leadership is to federalize the party to proper
federalization of the state
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[1]
Author is Constituent Assembly Member and Senior
Advocate, Supreme Court of Nepal as well as Faculty of ICMS,TU Teaching
International Law, IHL and IHRL, International Environmental law and Disaster
Law, Leadership Development.
[2] Retrieved June 26
2019, from:https://www.encyclopedia.com/history/united-states-and-canada/us-history/federalism.
[3] Retrieved June 26
2019, from:http://www.forumfed.org/countries/
[4] UCPN-Maoist
election manifesto 2008&2013
[5] The Converted
parliament changed the government in three times but enactment of laws was not
in priority. Even the Local Government Operation Act 2017, passed after the
election of local government and provincial assemblies started without any
infrastructures.
[6]
Dissenting opinion registered by Hon.Narahari Acharya, against the State
restructuring and division of state power committee report in 2010.
[7]
Paper Submitted
to Conference held jointly by Goldsmiths, University of London and University
of Oxford
at Wolfson College, Oxford on 11th and 12th July
2011 and Paper submitted to Kyoto University, Japan 3rd Dec 2011
posted by KDevkota @ September 28, 2024
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