The Constitutional Process in the ‘new Nepal’

1. The Constitutional Process in the ‘new Nepal’ Of Kings, Armies and Amnesties

2. Constituent Assembly Process • Established with first sitting on 28 May 2008 • Originally given a two year mandate; extended in May 2010 for further year • 601 members • Operating in the midst of continuing political instability.

3. Inclusiveness within CA

4. Inclusiveness within CA cont/d

5. King... Abolition of the monarchy and implementation of a Republic a central political imperative: Art 159 Interim Constitution In an amendment to the Interim Constitution, the Office of the President created

6. Army Constitutional crisis in May 2009 concerning the dismissal of the Chief of Army Staff Highlighted difficulties with Interim Constitution, existing legislation, fundamental questions of power

7. Amnesties Comprehensive Peace Agreement: ambivalent signs on combating impunity: contrast objectives with ‘withdrawal of political cases’ Transitional Justice issues largely silent to date in the constitutional debate; except recognition of special rights to assistance for families of martyrs of conflict and those disappeared, persons disabled during the conflict and right to participation in all the state structures

8. Human Rights Coverage Some of the interesting features: Emphasis on affirmative action, combating untouchability, rights of the ‘third gender’, equal rights between genders in relation to inheritance, right against violence against women, rights of victims of crime, rights against exploitation (mentioning human trafficking, bonded labourers and slavery), right to a clean environment, ESC rights in mainstream rights*

9. Examples of breadth ‘The State shall not discriminate against any citizen in the application of general laws on grounds of religion, colour, caste, tribe, gender, sexual orientation, biological condition, disability, health condition, marital condition, pregnancy, economic condition, origin, language or region, ideological conviction or other similar grounds. Provided that nothing shall be deemed to prevent the making of special provisions by law for the protection, empowerment or advancement of women, dalits, indigenous ethnic tribes (adivasijanajati), Madhesis or farmers, workers, oppressed region, Muslims, backward class, minority, marginalized and endangered communities or destitute people, youths, children, senior citizens, gender or sexual minorities, disabled or those who are physically or mentally incapacitated and helpless people who are economically, socially or culturally backward’

10. Examples Cont/d Importance of Guaranteed Rights of Participation: ‘Women, dalits, Madhesis, indigenous tribes, minorities and marginalized, Muslims, gender and sexual minority community, disabled people, youths, backward class, farmers and workers and oppressed groups, who are socially backward, shall have the right to participate in state structures on the basis of the principle of proportionate inclusion’ Inclusion of right for farmers Inclusion of duties

11. Some Issues of Inconsistency with Int Human Rights Law Limitation of many rights to citizens Breadth of some limitation clauses, and state of emergency clause Preventative Detention Interpretation of the Constitution: Parliament versus Judiciary Reconciling rights of different groups (extension of rights normally associated with indigenous people to marginalised more generally) Query level of public consultation in future

12. Ways of accessing information about the CA Process • CA’s Website: http://www.can.gov.np/ and Media Centre • Centre for Constitutional Dialogue Website: http://www.ccd.org.np