The Interim Constitution of Nepal, 2063 (2007) - Digital Himalaya

THE INTERIM CONSTITUTION OF NEPAL, 2063 (2007)AS AMENDED BY THE FIRST TO SIXTH AMENDMENTSAn Interim Constitution Drafting Committee was formed in June 2006, chaired byretired Supreme Court Justice Laxman Aryal. Originally it comprised 7 prominentlawyers, including former presidents of the Nepal Bar Association. When it wasrealized that 5 of these were male Brahmins, the Committee was expanded to bringin a few women, and members put forward by the various parties including theMaoists. It clearly found its work very difficult. The first draft that was made containedmany incomplete provisions, or provisions with alternatives, many of them showingclear signs of Maoist conceptions of government – including severe undermining ofthe independence of the judiciary, and the placing of excessive powers in the handsof the Council of Ministers. Maoist contributions to the draft included the stress onland reform, which survives into the final version. Another sign of the difficulty ofthe task was the considerable extent to which the Interim Constitution DraftingCommittee had recourse to the 1990 Constitution.Although about 5000 submissions were made to the Interim Constitution DraftingCommittee from various civil society groups, it is not known whether they were evenread. The changes that were made from the 1990 Constitution did however reflectthe concerns of those calling for inclusion, most notably in some new directiveprinciples, and in the provisions for the Constituent Assembly. Also some newfundamental rights are to be found, some of which were formerly in the directiveprinciples chapter. And the state is to be secular, no longer a Hindu kingdom. Theposition of the monarchy was placed on ice, as it were. Previously kingly functionsare now given to the Speaker or to the Prime Minister. But the third amendment tothe Interim Constitution, in December 2007, took the further step of saying thatNepal is to be a republic, and this is to be implemented by the first sitting of theConstituent Assembly. The fourth amendment declared Nepal to be a federaldemocratic republic, created the post of president as head of state, a vice-presidentand a national trust to which royal property is to be transferred. The fifth amendmentintroduces the requirements of political consensus for the election of president, a2/3 majority to amend the interim constitution, recognition of the aspirations ofindigenous and backward communities for autonomous regions, local self governingbodies and for social inclusion in the army.The basics of the existing governmental, parliamentary, system remain. However,there is no longer a second house of parliament, but most of its members (other thanroyal nominees) are merged into the House of Representatives. While the InterimConstitution was being drafted, negotiations with the Maoists were proceeding,and a Comprehensive Peace Agreement was signed in November 2006. Thisagreement meant that there had to be provision for nominated Maoist members ofthe house. At the same time 48 other new members were to be nominated, ostensiblyto broaden the membership, though in the end the parties mostly brought in peopleof the old rather than a new mould. The interim nature of the arrangements is alsosignified by the insistence that decision making is to be by consensus, including theselection of the Prime Minister. This was carried to the extent that there was noprovision for a vote of no confidence in the government. This was changed in thesecond amendment in June 2007. The same amendment introduced a recognition ofthe opposition – another change that perhaps hints at a weakening consensus.8