Crafting Federal Democratic Republic of Nepal: Role of nepalese Political and Welfare Institutions.

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SOCIOLOGY AND POLICY PRACTICES

IN CONTEMPORARY ISSUES

Edited by:

Muhamad Fadhil Nurdin Centre for Socioglobal Studies

Padjadjaran University

Foreword by: Dr. Arry Bainus MA

Dean, Faculty of Social and Political Sciences Padjadjaran University

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SOCIOLOGY AND POLICY PRACTICES IN CONTEMPORARY ISSUES

First Published May, 2015

Published By

Penerbit Samudra Biru (Member of IKAPI) Jomblangan Gg. Ontoseno Blok B No 15 Rt 12/30 Banguntapan Bantul Yogyakarta Indonesia 55198 Telp. (0274) 9494 558

E-mail/FB: psambiru@gmail.com

ISBN: 978-602-9276-55-8

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LIST OF CONTRIBUTORS

Ali Maksum, is a Ph.D candidate at the Centre for Policy Research and International Studies (CenPRIS), Universiti Sains Malaysia, Penang. His current project is about the Indonesia-Malaysia relations from defensive realism perspective. He has written articles have been published in such publisher as Kajian Malaysia: Journal of Malaysian Studies, Springer (ISI), Indonesia national newspapers and conferences.

Arry Bainus, Ph.D is a senior lecturer at Department of International Relation Padjadjaran University. He recived his doctoral degree in University of Indonesia. He focuses his studies on issues arround national security and defence, including political study on Indonesian Army. Now he is a dean at Faculty of Social and Political Science Padjadjaran University

Ari Ganjar Herdiansah, Ph.D is a lecturer at Department of Sociology Padjadjaran University. In 2014 he received his doctoral degree in political sociology at University of Malaya, Malaysia. His main academic concerns are political sociology of Islamic society, political communication, and the politics of community.

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Fitaha Aini, MA, is a communication lecturer in Indonesia. She has published book and journals in the ield of communication and media. In 2013, she published her irst book entitled Kebebasan Akhbar Malaysia-Indonesia. She completed her study in Science University of Malaysia (Persuasive Communication) in 2008 and University of Malaya (Media Studies) in 2011. Her previous research was evaluation of communication programs (2009-2014) and formulation of communication policy (2015-2019) in Indonesia under the Ministry of National Development Planning.

Forina Lestari, M.Sc. obtained B.Sc.Eng. (ITB, 2006), MSc in Housing, School of Housing, Building and Planning, University of Science Malaysia (USM, 2008).Lecturer at Indonesian Institute of Technology (ITI). She has published a book: Alam Takambang Jadi Guru: Merajut Kearifan Lokal dalam Penanggulangan Bencana di Sumatera. Consultant and expertise at Directorate of Rural and Urban Afairs, Indonesia National Development Planning Agency (Bappenas) and Directorate General of Spatial Planning, Ministry of Public Works(2013), Directorate General of Regional Development Assistance, Ministry of Home Afairs and Expert, Deputy of the Area Development, Ministry of Public Housing (2012), Expert Staf, Commission V (Infrastructure), he Indonesian House of Representatives (DPR, 2011).Junior Expert, Directorate of Rural and Urban Afairs, Indonesia National Development Planning Agency (Bappenas, 2010).

Kumarashwaran VadeveluMSW is a Ph.D scholar at the Social Work Programme, School of Social Sciences, Universiti Sains Malaysia. His current Ph.D studies regarding social support system among youth who identiied as transgender women dealing with HIV/AIDS issues. Currently, he’s working as an outreach worker with AIDS Action and Research Group (AARG), Universiti Sains Malaysia under the programme of Needle and Syringe Exchange Program (NSEP) which is dealing with the drug user community.

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Muhamad Fadhil Nurdin, MA and Ph.D. from University of Malaya. He is a leturer at Departement of Social Welfare (1982-2011) and Departement of Sociology (2011-present), Head Departement of Sociology in Faculty Social and Political Science, Padjadjaran University (2014- present). Visiting Associate Professor at University of Malaya (2008) and Visiting Associate Professor at Univerisiti Sains Malaysia (2012- present).

Syarif Muhidin, Prof. Dr., obtained his Ph.D. from University of Pedjadjaran (UNPAD) Bandung (1997), Master of Science from University of Wales (1979), Diploma in Social Policy & Administration from University College of Swansea (1977). Currently, he is Visiting Senior Lecturer at Universiti Utara Malaysia (UUM), prior as Visiting Lecturer at Universiti Sains Malaysia (USM), 2010-2012, and formerly as the Head of Research Institute of University of Langlangbuana (UNLA), last he is a Honorable Member (Dewan Kehormat) of the Institute for Social Work Sertiication of Indonesia (2012-up to the present).

Tahcya Muhamad, R. A. Drs. MSi is a senior lecturer at Department of Sociology Padjadjaran University.He is expert in sociology of family and rural community.

Tia Devianty, S.IP., MPA, is a PhD candidates at Universitas Padjadjaran, and a master’s degree graduate from Public Policy, Faculty of Public Policy and Management, Flinders University, Australia. Now, a lecturer at Ahmad Yani University, Bandung - from september 1996 – present Teaching, Researching, and Public Servicing.Current Researches are mainly about Capacity Building For Decentralization (2008-now).

Tofan Rakhmat Zaky, S.Ip MA is a researcher at the Department of International and Strategic Studies, Universiti Malaysia, Kuala Lumpur. He is activist in Art Movement in Malaysia.

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ACKNOWLEDGEMENT

Alhamdulillah. hanks to Allah SWT, whom with His willing giving me the opportunity to complete this book entitled Sociology and Policy Practices in Contemporary Issues. he publication of this book would not have been possible without the guidance and knowlwdge wich I have acquired from my honourable professors; Professor A.D Saefullah - University of Padjadjaran and Professor Abd. Hadi Zakaria - University of Malaya. I would also like to dedicate this book to my beloved wife, Tuty Tohri and our lovely children Tofan Rakhmat Zaky, Forina Lestari, Fitaha Aini and Tamal Arief Ihsan - their support in my life.

he publication of this book would not be possible without the assistance and cooperation that we have received over the years from the many individuals and organization in various parts of the world. In particular, we wish to thank our team, all authors - Department of Sociology Padjadjaran University and Universiti Sains Malaysia. Specially thanks especially to Ali Maksum for his excellent assistance during the editorial process of this book. Dr. Arry Bainus the Dean of Faculty of Social and Political Sciences, Padjadjaran University.All of my Masters-PhD students and colleagues at Padjadjaran University as well as USM whom I would like to thanked for providing continuous support towards my success.

Wassalam.

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FOREWORD

Dr. Arry Bainus, MA

Dean, Faculty of Social and Political Sciences

Padjadjaran University

I would like to express my sincere wishes to Muhamad Fadhil Nurdin, PhD as Head Department of Sociology Faculty of Social and Political Sciences Padjadjaran University for his great dedication and success in completing this book titled “Sociology and Policy Practices in Contemporary Issues”. his is a very interesting and important book which I personally feel able to impart more knowledge to the many academics, not only from sociology and political ields, but also from other ields as well. he various issues addressed in this book are in fact very much current issues that is happening around the globe, which need to be understand and scrutinize for better intervention.

I am really honoured to be given the opportunity to give a foreword to this special book. It is hoped that this book able to generate more discussions and awareness on quest for searching for the more relevant solutions to all social, political and economic issues occurring around us today.

I would like to congratulate all chapter contributors for sharing their ideas and knowledge, which I am sure able to set platform for more writers to venture into the highlighted issues. I sincerely hope that more of this book kind will be published in the near future.

hank you. Wassalam.

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IntRODuCtIOn

In the Name of God, the Most Gracioeus, the Most Merciful

his book provides a thematic issues and challenges in the new era, Sociology and Policy Practices in Contemporary Issues. he main objective is to present an integrated analysis of how the discipline of sociology can contribute to our wider understanding of the variety of social and political issues, practices and insttitutions approachs, policies and philosophy wich exist in our society and countries. his explanatory chapters expected to examine and understand as well as ofer choices for human beings in the dinamics world to build a human harmony.

his book depart from the point of view that sociology is as applied social and political sciences can contribute to the development of human life through many perspectives; political and international strategy, culture, history, communi-cation, poverty and social probles. he various theme have been selected are discussed from social fenomena to policy directions.

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and the countries in ASEAN should build strong partnership in all sectors especially migrant workers which seen obtain small attention. Facing the ASEAN Community 2015 both countries should prepare as maximize as possible by empowering all aspects including migrant workers. By take positive action towards migrant workers both countries indirectly has contribute to the development of “Ummah.”

In the thrird chapter discusses communication strategy through media education: an efort to achieve harmony and sustainability in Indonesia-Malaysia relations - concludes a guidance should be provided to the public so that they can be more critical and wise in dealing with any negative news. A critical community is a community who is able to diferentiate the written and hidden message of writing. A wise community is the one who is not provoked by provocative and negative news. Indonesian and Malaysian should be aware that each of them has had a signiicant contribution one to another. A good example can be seen through the assistant of Malaysian people in the disaster recovery process in Indonesia and the existence of Indonesia migrant workers in the Malaysia’s economic development. However, Indonesia-Malaysia rela-tions is always changing and tend to lead to conlict situations. he role of media and media educationis importantas a communication strategy to implement the problem solving modelin understanding the global situation and the public policies who are based theory of cultural conlict and acculturation. Chapter fourth, the author emphasized Indonesian Culture Heritages in the 21St_Century.

his section concludes that hird World back to dig the philosophical values that are in each country. For instance, the basic values of the Indonesian nation is relected in the ive principles of Pancasila namely the divinity in God Almighty, humanity, unity and nationality, deliberation and social justice for all people. he problem is how to translate basic values into the concept of development and preserve cultural heritage. Apparently, the third world thinkers have to work harder to formulate a philosophical values - ideological cultural heritage as part of the great nations of the world.herefore, the cultural heritages is an essential economic asset in facing the escalation of human development.

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of democracy, resulting in crafting a uniied republic out of a multi ethnic Nepal. Chapter six explores the broadcast media industry and the role model or best practice in the broadcast media industry. his concept is suitable due to it contains freedom which is up-to-date without abandoning the values of religion, culture and national spirit. Overall, Indonesia requires an (endogenous) big push to strengthen and institutionalize the use of research product for design and implementation of public policies. his will be a crucial factor in determining the success of the welfare policies that the government is currently designing.

In the chapter seven related with poverty phenomena. However, these historical problems did not result in serious poverty under the well planned economic system. he number of poor people inherited from the previous period was also relatively small. In addition, the struggle of urban poor communities in Malaysia for housing and land rights is closely related to the development and history of the country. After the British colonial period, Malaysia’s priority was to develop its economy by focusing on the manufacturing and export industry in urban areas. his resulted when people from rural areas migrating from village to the city, in search of opportunities and to ill the workforce demand. Most of the urban migrants would build their own house near the manufacturing factories, because the surrounding lands were unoccupied and unused. With hard work and their own resources they would clean the area (wilderness) and build houses; this would encourage the development in the area and hence they are known as urban pioneers.

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research, it is expected that the people of Malaysia be aware especially in spending the time with their children or less able to prevent their children’s involvement in crime. Finally, researchers expect this research can provide as important reference material for dealing with negative behavior such as criminal involvement among adolescents in Malaysia.

his book examines the social and political fenomena in the broader “Sociology and Policy Practices in Contemporary Issues” perspective. It is compiled from travelers and knowledge experiences in international seminars, talks and forum of researchers, supervisions and other discussion with my professors and colleagues, PhD and Master students. hat experiences, together with their personal values and interests extremely inluence to all authors in this book. Personally, I hope that those who engage and read this book will obtain fruitful knowledge. All errors are the author’s responsibility.

Wassalam.

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READERS GUIDE

Nepal is one of the least developed, post conlict recovery countries going through a series of transitions and eforts of nation building. Declared as a federal republic through a Constituent Assembly vote in 2008, this young republic has been struggling with post conlict issues and rewriting its constitution for the ifth time in order. his paper investigates the various citizen mobilisation eforts by political institutions in Nepal and their political struggles over the last sixty years in general and post 2006 in particular. his paper analyses the political changes, contestation of post 1996, the role of the 2007 Constituent Assembly (CA) and its

Chapter

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Crafting Federal Democratic

Republic of Nepal:

Role of nepalese Political and Welfare Institutions

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demise in 2012 and the role of political institutions in advancing the goal of nation building in post conlict Republic of Nepal. his paper argues for an increased citizen engagement catalised by political institutions with constitutional processes to craft a real republic of Nepal.

NEPAL - A LAND LOCKED, POST CONFLICT COUNTRY IN TRANSITION

Nepal, a land locked country of more than sixty ethnic groups, hundred languages, and half a dozen religions. Currently with thirty million people, Nepal is struggling to establish itself as a young republic. he traditional Monarchy was shadowed for a century by the Rana regimes that kept Nepal in cultural, political, and economic isolation until 1951. Nepal has gone through years of an authoritarian regime of Monarchy to a semi-authoritarian political system and to a democratic multi party political system and inally declared itself as a federal, republic in 2008 through a constituent assembly.

In this paper, we investigate social and political developments attained by Nepalese political and welfare institutions despite of its social, economic, political and legal struggles to become a democratic, federal, republic in 2008. A lot of discussion was centered on the role of donors and neighbouring countries, political parties and their self interests in the peace process but the signiicance of the constitution making process and the role of political parties has been largely overlooked or given less attention. In this paper, a focus on the process and politics of Nepal’s constitution-making and the role of political institutions, especially parties, provide important insights on political interests, citizen engagement, and democratic outcomes. By doing so, this paper tries to bridge the gap by exploring the dynamics of constitution writing, judicial and political changes, negotiations, political and citizen mobilisation and the position of political parties in the context of post 1996 Nepal.

METHODOLOGY

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the case of Nepal. In addition, the constructivist research paradigm is used, whereby the researcher/author became immersed in the research process and seeks to construct meaning (Morris, 2006). his is a methodological challenge and innovation given the open nature of data collection process for this paper. However, due to the methodological novelty important conclusions emerged for the consideration of Nepali academics, political leaders and policy makers in particular.

his chapter is divided into six sections. After a brief introduction and methodology, section two describes the political parties and politics of Constitutional choices. Section three is an analysis of Nepal’s experience with constitution writing as a contested terrain. Electoral politics invariably inluence the legislature and the executive and there may be attempts to apply and interpret the constitution according to party interests. Sections four and ive, further explore the reality and rhetoric of the political parties, contestation, engagement of diferent actors and institutions with the Constituent Assembly (2008-2012), in the context of citizen mobilisation, human rights, democracy, politicisation of judiciary. he chapter concludes in the section six.

POLITICAL PARTIES OF NEPAL

Usually an organization is created to perform one particular function. When that function is no longer needed, the orga-nization faces a major crisis: it either inds a new function or reconciles itself to a lingering death.An organization that has adapted itself to changes in its environment and has survived one or more changes in its principal functions is more highly institutionalized than one that has not (Huntington, 1968: 15).

A political system that is open and competitive political parties an essential condition to build a vibrant democracy. Political parties are integral to the workings of democracy and have been described as indispensable for the successful working democracy (Asirvatham, 1964). he political parties of Nepal have evolved over a period of time from radical social action to social democratic in their visions.

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(to over throw the oppressive Rana oligarchy) in Kathmandu considered the irst political party in the country. Pioneering scholars made critical observations on origin, ideology and leadership of diferent political parties. Joshi and Rose (1966) and Rose (1971) focused more on personalities, events, trends and inter-personal, intra-party and interparty conlicts to bring out the main characteristics of the emergent democracy in Nepal (Rose and Margaret 1980; Rose and Scholz, 1980). Baral (1977, 1983, 2004), analysed centrality of oppositional roles of political parties and further examines the overall roles of banned political parties against the panchayat system. hese studies show the indication that since 1940s, the Nepali politics and political parties have gone through rapid changes passing through diferent phases of transition towards consolidating democracy in 1990. Further, Baral (1993) recognize a number of factors that are hampering efective governance e.g. lack of ideological clarity of political parties, absence of strong leadership, intra-party conlicts, lack of proper relations between the organizational and the governmental wings of the ruling party, and undue animosity in relations between the ruling and opposition parties. More recently Hachhethu (2002) examined party politics at the local level. Referring to the demeaning nature of party politics in Nepal, Bhatta (1999) noted that:

‘Parties tend to split and realign whenever diferences surface and hence party fragmentation is on the rise. So is criminalization of party politics. here is also a tendency towards lack of consensus, and parties seem to be more interested in acquiring and hanging on to power than in pushing through-and supporting, if necessary-good policies’ (1999: 85).

Echoing similar observations, Askvik et al (2010) observed that ‘in the transition to democracy, numerous games of tug-of-war and horse-trading between political parties occurred’ (p.420). hey also note that ‘low degree of trust in political parties raises a serious question regarding the creation and maintenance of democracy. Low trust in political parties may be attributed to the democratic vacuum created by political inighting among the major political parties that has led to 13 governments in the period between 1991 and 2004. People have now become disillusioned because the parties have become polarized and have failed to deliver either political stability or peace.’ (Askvik et al.,2010, p. 424).

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political parties have been registered at Nepal’s Election Commission (EC) for new Constituent Assembly (CA) election that government conducted during November 2013. Out of them 76 parties are newly formed that were not even in existence during the 2008 CA election. In the 2008 CA election, 84 parties had applied for the registration but only 74 parties formally got registered. Out of the 74 registered, 54 parties took part in 2008 election and 25 parties were elected to the CA.

Ganguly and Shoup (2005) have argued that by any measure, Nepal’s experience with democratization has been a tragic failure. ‘Nepal’s diiculties with democratization spring from both institutional and historic factors that have choked of popular participation, reduced political competition to little more than a scramble for gain by well-placed elites, and left the country with no sense of overarching national identity’ (2005:130). In contrast, in this paper we argue that democracy building eforts by both by the non democratic (pre 1990) and Constituent Assembly led (post 1990) constitutions and the role of political parties need to be recognized. We also present the implications of these eforts on the democracy building and governance for Nepal. Despite of the stated weaknesses of Nepalese political parties, below we further explore the role of political parties in proclamations of various Constitutions and their citizen engagement with Nepal’s experiments with democracy.

TROUBLED HISTORY OF CONSTITUTIONS OF NEPAL

Elster (1997) commented that Constitutions arise in a number of diferent ways. At the non-democratic extreme of the spectrum, we may imagine a sovereign lawgiver laying down the constitution for all later generations. At the democratic extreme, we may imagine a constituent assembly elected by universal sufrage for the sole task of writing a new constitution. And there are all sorts of intermediate arrangements (Elster cited from Hadenius ed. 1997).

he Nepal’s Monarch, as the Hindu King, used to be the source of all laws, since there was no written constitution in Nepal till 1951 from the time of uniication of the country in 18th century. he Muluki Ain (Country Code) that was introduced in 1853 provided for the laws on social conduct but not on state powers and relations.

On 26th_{of January 1948, the irst written Constitution after the}

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Padma Shamsher, came in to efective from April 1, 1948 but never fully implemented. he declaration cited as the Government of Nepal Act 1948. Latter, the interim Government of Nepal Act, 1951 came in to force when the Rana regime ended in February 1951, which led to the system of Constitutional Monarchy.

Later diferent Constitutions of Nepal were enacted: he irst one in 1951 (proclaimed by King hribuvan, served as an Interim Constitution), 1959 ( proclaimed by the King Mahendra held strong executive, legislative and judicial powers), 1962 ( proclaimed by King Mahendra, established Panchayat system and hence known Panchayat Constitution), 1990 and the Interim Constitution in 2007.

King Mahendra succeeded King Tribhuvan in 1955, announced the appointment of Constitution Drafting Commission, government without a prime minister, and a nominated Advisory Assembly during February 1958. In February 1959, promulgation of constitution took place and the Constitution of the Kingdom of Nepal, 1959 came in to existence. By royal proclamation on December 16, 1962, King Mahendra announced a new constitution, the Constitution of Nepal, 1962 that radically reformed the 1959 constitution but also adopted many features of the Rana system. Known as the Panchayat Constitution, it was the fourth constitution in ifteen years. With the Panchayat Constitution in force, the irst democratic experiment of Nepal abruptly ended. King Mahendra extended his absolute rule through the ‘party less panchayat’ system, in which villages became self-governing units through a chosen group of elders and all political activities based on party system were banned (Joshi and Rose 2004). he Panchayat constitution not only codiied the irrelevance of political parties, and declared them illegal.

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he prodemocracy movement that arose in Nepal in 1990 was the irst peaceful mass movement in the history of that country. As a result he Constitution of Nepal, 1990 is the irst fully democratic constitution Nepal adopted though which the sovereignty of the state was transferred to people from the Monarch. Framed by the Constitution Drafting Committee established by the Interim Government, the 1990 constitution provided for the sovereignty of the people, a multiparty parliamentary democracy, basic human rights, and a constitutional monarchy (Dhungel et al., 1998). he restoration of democracy through the 1990 popular movement was a landmark for political party transformation.

he reformist agenda of the 1990 constitution of Nepal, including decentralisation, was not implemented by the parliament or the executive for various reasons and this became one of the main causes of the dissatisfaction with the 1990 constitution. Unfortunately, this constitution too failed to satisfy the demands and aspirations of many Nepalese citizens. his irst democratic constitution was also misused by the Constitutional Monarchy claims Singh (2009). He further states:

On 1 June 2001, King Birendra, Queen Ashwarya and other close relatives were killed in a shooting spree by drunken Crown Prince Dipendra, who then shot himself to death. Later on, Gyanendra was crowned as the King of Nepal on 4 June 2001. He was a man of high ambition. He misused the provisions of the Constitution of 1990. He tried to justify his unconstitutional and arbitrary acts under Article 127 and certain other provisions of the Constitution (Singh, 2009).

he Maoist Party in particular insisted that the 1990 Constitution need to be changed. As a result an interim Constitution drafting committee was formed in June 2006, chaired by retired Supreme Court Justice Laxman Aryal. he Interim Constitution of Nepal, 2007 is currently at practice until a new Constitution is promulgated.Turning a Maoist revolution into an interim constitution, in Nepal as in other cases, reveals the essentially political nature of Constitutionalism.

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he above brief discussion highlights the very birth and evolution of written Constitutions and the role of political parties in Nepal over a period of 60 years. he series of Constitutional promulgations and proclamations reinforces and also corroborate that Nepal has seen signiicant citizens’ movements in its history in search of a democracy. But many of these popular movements led by political parties were crushed in the past and most of them got aborted in compromises, which failed to establish people’s sovereignty in the true sense in Nepal till date.

he current efort to write the Constitution is the Nepal’s sixth time. Previous Constitutions were written by experts and did not use a Constituent Assembly mechanism and were not written in an inclusive manner. he peoples’ participation and voices were not adequately included and perhaps this is why previous Constitutions did not last. However, one of the striking features of the 1990 constitution’s (proclaimed on 9th

November 1990) preamble is the special emphasis of public will. he sovereignty lies in the hands of the people, and the constitution has been drafted with the greatest possible participation of the masses.

he irst Interim Constitution (IC) came in to force on 30th_March

1951(lasted for 8 years) with the proclamation of the Interim Government of Nepal Act serving as 1951 Interim Constitution. It contained a provision to hold general elections for a Constituent Assembly within two years, but they were never held. Six amendments within seven years devalued the democratic law. he preamble of the second IC of Nepal 2063 (2007) states that it is ‘prepared through a political consensus enforceable until a new Constitution is framed by the Constituent Assembly in order to institutionalize the achievements of the revolution and movements till this date’. Diferent from the previous Constitutions, the 2007 Interim Constitution (IC) emphasised democracy, rule of law and citizen participation at many levels and in many forms. Many provisions of this interim constitution enhanced people’s participation in national politics. his is the second time that Nepal has had an Interim Constitution which came in to force 15th_{January 2007.}

CONSTITUTION WRITING, CONSTITUENT ASSEMBLY AND POLITICAL PARTIES:

BUILDINGBLOCKSOFDEMOCRACY

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(Mahbub ul Haq, cited in Human Development South Asia Re-port, 2012).

About 200 new constitutions have appeared in countries at risk of internal violence since 1975. New constitutions have heralded the adoption of multiparty systems from Albania to Zambia (Widner, 2008). Nepal took the route of Constituent Assembly (CA) in 2008 guided by the Nepal’s Interim Constitution 2007. he goal is to draft the new constitution sadly could not deliver by the political parties and the CA was dissolved on 27thMay_2012.

he demand for the Constituent Assembly (CA) for Nepal was not new. It has been there but did not materialise until 2008. In its irst convention in 1951, the Communist Party of Nepal (CPN) committed itself to strive for an all party conference, an interim government and elected constituent Assembly. Same time the Congress party also raised the slogan for constituent Assembly as its main political agenda and demanded for the democratic rights for the citizens. he second congress of CPN in 1957, rejected the irst congress’s demand for a constituent Assembly, and opted for what Rajamajhi called ‘fair democracy’. he recent constitution writing process through a Constituent Assembly (CA) was inally achieved as a response to a Maoists demand as a precondition to stop their insurgency arising from a decade (1996-2006) of political, social, and economic spheres in Nepal. It was expected that that the 2007 Constituent Assembly shall adopt and ensure the basic principles of democracy, rule of law and human rights.

he case of Nepal, shows a distinctive experience on ways to institutionalise democracy, ight against centuries of monarchy, unequal society divided by the caste and class system, and a population that struggles to empower itself. he distinguishing characteristic of a CA is that it is established to make a constitution, or at least that this is its primary role. By adapting CA mechanism, Nepal’s political institutions seem to be committed to ensure human rights and to advance social development even during conlict and transition periods.

FROM POPULAR PROTEST TO PARLIAMENTARY

SUPREMACY

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of the United Nations Special Representative, Ambassadors, the leaders of the Maoist party and the two major parliamentary parties signed the Comprehensive Peace Agreement (CPA). his is a irst and irm step that led towards declaring Nepal as a federal republic in 2008.

he Comprehensive Peace Accord (CPA) of 2006 was a result of long and often diicult negotiations between the Seven Party Alliance (SPA) and CPN (Maoist). hrough this agreement, the SPA and Maoists committed themselves to a peace process that would not only end the Maoist conlict but also lay out a road map for elections to a Constituent Assembly that would restructure Nepal along a more democratic and inclusive lines.

he CPA signed inNovember 2006 is known a historical milestone in the Nepal’s peace process as it declares in addition to the other human rights guarantees, the end of armed conlict, guaranteeing the sovereignty of the Nepalese people, progressive political solution, democratic restructuring of the state and social, economic and cultural transformation of Nepalese society through the constituent assembly.

he CPA clearly states that “Both parties express their commitment towards universal declaration of human rights 1948 and international humanitarian law and basic principle and values of human rights” (Agreement point no 7). he inclusion of human rights in the CPA shows the evidence that Law makers of Nepal appreciated these issues and laid the philosophical and legal basis for a just and equitable Nepalese society in the Constitution.

As anticipated, the CPA of November 2006 has led to the cease ire and preparation of the Interim Constitution of Nepal, 2007. It is prepared through a political consensus enforceable until a new Constitution is framed by the Constituent Assembly (CA). Nepal’s peace agreement relects a deep urge for peace and protection of Human rights. Majority of respondents of the view that the peace agreement is a ‘political necessity for both Maoists and for the Seven political parties to come together’ as the then King Gynendra on May 22, 2002 dissolved the Parliament on the recommendation of then prime minister Sher Bahadur Deuba and have started intervening by appointing Prime Ministers on his will. Again February 1, 2005, the King again sacks the Deuba government, declares state of emergency and assumes state power.

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support of both urban and rural people, the alliance of the seven main political parties and the CPN-Maoist was able to organise popular protests that led to Jana Andoaln II (People’s Movement II) which lasted for 19 days, ended the direct rule by King Gyanendra, and forced him to reinstate the parliament on 24April 2006,. his is the beginning of a journey towards a new Nepali democratic state. hese events show the evidence of the active citizen participation in the struggle for democracy and regime change.

BIRTH AND DEATH OF A CONSTITUENT ASSEMBLY (CA): 2008 TO 2012 AND 2013

he election of the Constituent Assembly (CA) in Nepal was held on April 10, 2008. For six decades leading to this election, the CA had been an unfulilled dream for the Nepalese. Maoists of Nepal waged a people’s war since 1996, inally made a hard bargain with political parties for them to put down their arms and move toward to the peace process. hey wanted to see elections to a Constituent Assembly that would write the Constitution for a new Nepal. he peace agreement (PA) signed in November 2006 led to craft a Constituent Assembly, which would exercise legislative power while writing the new constitution. It was not an easy process. he election of the CA 2008 was an important step to sustaining democracy in the country which in turn set the peace process.

As a result of hard negotiations between the Maoists and main political parties led to Nepal’s transitional government that decided to redraft the country’s constitution as part of a peace process. he transition government asked Mr. Bhojraj Pokharel to organize Constituent Assembly election in a bitterly divided country that was just emerging from internal conlicts and war. When Pokharel started, no electoral rules were in place, many of the people who would compete for oice had no experience with party politics, and few trained election workers said they were willing to staf polls in insecure rural areas’ (Scharf, 2012:2). Each party, including the Maoists, wanted an electoral arrangement that best positioned them for a victory. Finally the parties have agreed on using both irst-past the-post and the proportional representation system. he country went to polls on the 10 April 2008 after having been postponed two times from earlier dates of 7 June and 22 November of 2007.

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party in the Constituent Assembly (CA), while the Nepali Congress Party had only secured 110 seats, the second-largest party and he Communist Party of Nepal was third, with 103 seats. he oicial and inal list of members elected under the proportional representation (PR) system was released on 8 May 2008. On 12 May 2008, it was announced that the irst session of the CA would be held on 28 May 2008.

Despite of uncertainties and political bickering, the Interim Constitution of 2006 inally paved the way for the birth of CA in 2008. he current context of change in power structures and political regimes provided many unique opportunities for civil society groups and ordinary citizens to take part engage and seek identity for themselves in the democratic experiment of 21st_{century republic of Nepal.}

ROLE AND ACHIEVEMENT OF CONSTITUENT ASSEMBLY (CA) OF 2008

he elected members of the CA were sworn in on 27 May 2008. On 28 May 2008 the historic irst session of the CA voted to declare Nepal a federal democratic republic, thereby abolishing the 240 years of monarchy. he 564 members of the Constituent Assembly voted on this motion, with 560 in favor and four opposed.

he Constituent Assembly also decided that King Gyanendra should leave the Narayanhity Palace within 15 days. On 29 May 2008, the royal standard was removed from Narayanhity Palace and replaced with the national lag. Former King Gyanendra reportedly said on 2 June 2008 that he accepted the Constituent Assembly’s decision. After months of power-sharing discussions and deliberations, CPN (M) Chairman Pushpakamal Dahal was elected as Prime Minister on 18 August 2008. Such was the power of CA and the role played by political parties in shaping the future of secular, federal and republic Nepal.

DEATH OF AN ExTENDED CONSTITUENT ASSEMBLY (CA) OF 2008 IN 2012

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AFTER four years of deliberation, marked by long delays and partisan power struggles, Nepal’s Constituent Assem-bly (CA) was dissolved on Sunday night—without com-pleting a new constitution. he country is now cast into deep legal and political uncertainty (he Economist, May 28th 2012).

Many political observers were critical of the death of the Constituent Assembly (CA) on 27 May 2012 which was born four years ago on 28 May 2008. It was not an unexpected death but an extended death, because the life of CA was originally planned only for 2 years. Recent work by Dixit (2012) and hapa (2012) is helpful to understand the politics of constitution writing in Nepal. Both the authors have raised important issues concerning Nepal’s weak polity, lack of interest to learn from its neighboring South Asian Constitution writing experiences, donor dependency and lack of social scientist engagement in constitution writing process that began in 2008.

“When the Constituent Assembly was elected in 2008, it was hailed as being among the most inclusive national leg-islatures the world over…the demise of the CA signiied the political parties’ failure towards the Nepali people in their promise to deliver a constitution for the “secular, inclusive federal democratic republican state that the Interim Consti-tution 2007 deined the country as” ( hapa, 2012:41- 42). ...most of the time spent on constitution drafting was pre-tence, backed by little jurisprudence, poor understanding of comparative south Asian experience, and diverted by a surfeit of donor-funding for overseas tours and in-country activism ( Dixit, 2012 : 35).

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frustration and disappointments regarding the death of CA in Nepal.

he many insightful arguments about the death of the CA have added to our common understanding of Nepal’s (lack of ) governance, but to a great extent failed in capturing the little but much needed success that Nepal has achieved in managing the ten years conlict, removal of monarchy, the integration of Maoist combatants, dealing hegemonic power plays to the extent possible and the current care taker government pronounced by the President of Nepal, instead of declaring an emergency and pushing the country in to another ethnic war and inally to a failed state.

NEPAL TRIES AGAIN TO WRITE A CONSTITUTION

Elections were held on 19 November 2013 amidst a 10-day long nationwide bandh (strike) and transport strike called by the alliance of 33 political parties led by CPN-Maoist-Baidya. To many political observers surprise, more than 70 per cent of Nepal’s 12 million voters turned out in elections, defying a boycott call and threats of violence by the 33-party alliance. Resilient Nepali voters casted their votes and elected a total of 585 (out of 601 total seats in the Constituent Assembly/Sambidhan Sabha) members of the Constituent Assembly i.e. a total of 240 in irst-past-the-post category and 335 in proportional category and the rest 26 members are to be appointed by the Cabinet.

Many international bodies including UNDP, he European Union, DFID, Denmark and Norway have provided inancial support to the process. he work done by the previous CA was sent to the respective committees for actions and set the tone for the second CA of 2013. It has paved the way for starting from the point where the previous CA had left in crafting a new constitution. In short, three major developments took place in Nepal during 2013: conclusion of integration process, formation of the caretaker government and the second elections for the constituent assembly in 2013 that led to the continued eforts to write the Constitution instead slipping in to the status of a ‘failed state’.

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due to the dissolved Constituent Assembly in 2012 in Nepal.

CONSTITUTION WRITING AND POLITICAL PARTIES: A CONTESTED TERRAIN

A democratic constitution and constitutionalism are essential for sustainable social, economic and human development for any country. hey both form the foundation that underpins sustainable, social, economic, human and social development. Political party in power and parties in opposition play a vital role in constitution writing. Unfortunately, Nepali politics for the last many years has been plagued by in-party ighting, and making and breaking of inter-party coalition. In such a power centric politics, the need, interest and aspirations of citizens has been grossly ignored (Hachhethu, 2000). Below, we further explore the contested process of Constitution Writing in the case of Nepal.

Constitution writing necessitates several discrete and distinct steps, starting with agreement on ground rules and formats and ending with ratiication. he fact is that Nepal currently could not deliver a full pledged peoples’ Constitution through a powerful Constituent Assembly given the time and resources spent over four years (2008 to 2012). his urges for retrospection and in-depth analysis at all levels most importantly the role of political parties. At the same time, given the contested nature of constitution writing, political inighting and host of other external factors have lead to the death of CA in 2008. But the hope is still alive given the past history of Nepal in peoples mobilization for political and policy changes.

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agenda by the proceedings of the CA in the last four years.

he disablement of CA on May 27, 2012 by the Maoist Prime Minister Dr. Baburam Bhattarai came as a surprise to many political observers and common public as it was Maoists who have demanded for it and provided leadership to it. Leaders of the Nepal Congress (NC) always believed that the Maoists will extend the term of Constituent Assembly because it is their baby. By requesting the Supreme Court of Nepal to re-consider its orders could have been a way to ind political solution in the interest of the Nation. One need to ask what political logics made Babu Ram Bhattrai to dissolve the CA, despite of the chances to its continuation by approaching the Supreme Court of Nepal as a legitimate institution for the extension of CA?

hapa and Sharma (2009) argued that Nepal is not a case of democratization driven by the middle class in which, arguments are clariied, interests and values are elucidated, and agreements are built on a consensual relection of majority public opinion. However, the evidence has shown that 2008 Constituent Assembly did create a space for public voices, increased public political consciousness and civic responsibility, though the political decision making have been largely guided by consensus politics in the dearth of dynamic civil society activism.

he notable accomplishments of the CA of 2008-2012 are the citizen mobalisation, political awareness, integration of Maoist combatants, rights of Women, Minorities and LGBT communities, formation of National Human Rights Commission, inclusion of marginal voices in the debates of federalism and democratic choices. he media reports conirmed that the political dynamics after the formation of CA has lessened the crime rate, increased human rights awareness and triggered both national and ethnic identities of all Nepalese especially the disadvantaged and historically oppressed communities in Nepal. In the section below, further discuss some these achievements and link them to the improvement of social development.

CItIzEn MObalISatIOn

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one of the main duties and responsibilities under the proceedings of the Constituent Assembly ( CA). Unfortunately all of them have failed to do so. We argue that it is these political leaders and their parties were unsuccessful but not the CA as a legitimate institution. he CA was extended four times beyond its original two-year term inally expired on May 27, 2012. And this time, the so called top rank politicians could not ind any easy way to give the CA another lease of life due to a Supreme Court’s judicial stricture that was in place. he Jana Andolan II is another case of evidence regarding public mobilisation and participation in the regime change.

As the evidences shows Nepali democracy had been subject to years of instability and political turmoil following the restoration of democracy in 1991 until the death of 2008 CA in 2012. Governments were accused of incompetence and corruption. Coalitions rose and fell in rapid succession and impunity still exists. However these process also lead to mobalisation of citizen activists through various means and institutions became the back bone of democracy building project of Nepal.

INCREASED KNOWLEDGE ABOUT CONSTITUTION AND CONSTITUTIONALISM

With the help of International IDEA an international NGO ive Constitution Information Centres (CIC) were launched at Chitwan, Pokhara, Biratnagar, Nepalgunj, and Dhangadi in 2010. he CICs are operated by experienced lawyers and will work closely with the two CA Procedural Committees. Political impartiality and inclusiveness are fundamental to their operations. he objectives of these centres are to support the Committee on Civic Relations and the Committee on the Collection and Coordination of Public Opinion as they go about their work; Increase public conidence in the constitution making process; Provide information and documents from the CA at the district level; and Obtain useful feedback on the draft constitution from those at the district level.

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complicated and cumbersome process takes time for the ordinary public to understand. Understanding the intricacies of the CA is another challenge. As a result of various do not funded awareness, legal literacy programs, four years of laboring of CA and the media reporting, Nepalese public is now a lot more critically conscious and are conscientised. his is a clear accomplishment of Nepal and its polity in providing increased access to political information.

RIGhtS OF WOMEn, MInORItIES anD lGbt COMMunI-tIES

he sacriicial revolt of Yog Maya Neupane against the then Rana regime in July 1932 AD (Ashad 1989 BS) can be taken as historical land mark of the women’s movement in Nepal. he history repeated with the people’s movement ( known as Jana Andolan II) of 2006 resulting to the formation of a CA in 2008 and the presence of 197 women law makers among the 601 members of the Constituent Assembly (CA) in 2008 is another signiicant achievement of Nepal’s women’s movement. he 197 women lawmakers represent 20 political parties. he highest number of women law makers (79) ailiated to Uniied Communist Party of Nepal (Maoist), followed by 39 of Nepali Congress and 38 of Communist Party of Nepal (UML).

For the irst time in Nepal’s history rights of minorities and LGBT community have been recognized and represented in the Parliament. hese disadvantaged groups have fought for their rights and stood on the front line for their liberation through national liberation. he credit to this goes to CA and the political parties (with many limitations) in laying essential foundations for continuation of a democracy project of Nepal.

IntEGRatIOn OF MaOISt COMbatantS In tO nEPalESE aRMY

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with cash packages left the camps in mid February, while 12 satellite camps were shut down in March (Jha, 2012). With this integration step forward, the peace process is now irreversible. Is this not an achievement of CA in ensuring rights of combatants and civilians and their families?

FORMatIOn OF natIOnal huMan RIGhtS COMMISSIOn OF nEPal

he National Human Rights Commission was established on May 26, 2000 under the Human Rights Commission Act of 1997 is another important move under the interim constitution of Nepal. he Commission was elevated to a constitutional body by the Interim Constitution (IC) of Nepal2007. he Commission is constitutes with the Chairperson and four members appointed by the President of Nepal for six years term at the recommendation of the Constitutional Council and upon the conirmation by the parliamentary committee hearing. he investigation upon complaints of human rights violation is the core function of NHRC.

Since its formation in 2000 to date, more than ten thousand complaints were received at various NHRC oices. he NHRC has carried out 11 incidents of exhumation till date. Major among them was the Godar exhumation of 2010 in which remains of ive students who were arrested, killed and buried by security force in 2003, were recovered from a site located at Godar village of Dhanusha district. he human rights monitoring is also one of the core function of the NHRC. he CPA of 2007 has entrusted NHRC to monitor the compliance of its human rights provisions. In this regard, the NHRC has conducted monitoring and prepared periodic reports accordingly. he reports apparently show that both government and CPN-M are not committed to implement CPA provisions.

CONCLUSION: CRaFtInG thE nEW COnStItutIOn FOR a

REPublIC

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seen as a political project within the bigger democracy and nation building in which interests and conlicts negotiated and rights of marginalized and disadvantaged are given priority and protected to a little extent. his paper has shown how democracy building eforts are contested in Nepal and its gradual transition from a multi cultural, ethnic to a federal, republic.

hough the mushrooming growth of Nepalese political parties seen as corrupt and a step to capture state power and resources, the evidence has shown that political parties did play a crucial role in the workings of Comprehensive Peace Accord of 2006, the Interim Constitution of 2007, and the work of Constituent Assembly in 2008-2012. hese processes have created new spaces not only for peace building but also increased participation of Nepalese public in societal restructuring, democracy building and citizen rights.

he Constituent Assembly proceedings (2008-2012) especially have given both optimism and pessimism: Optimism because of there is consensus, democratic space and scope for protection of individual and collective rights. And pessimism because of growing impunity, law is being increasingly thwarted due to the nondemocratic practices of political leaders and lack of legislature in place.

To conclude, Nepal and its experiments with democracy are at a critical juncture today. he interim constitution of 2007 did not envisage perhaps the situation where the Constituent Assembly (CA) would fail to draft a statute due to bickering and intra party rifts. But the successful conduction of 2013 elections and the consequent formation of CA of 2014 show the strengths of Nepalese bureaucracy and political institutions. he crafting of republic of Nepal depends on the very promulgation of a new constitution at the earliest, practice of constitutionalism and democracy building as there is an intrinsic and extricable relationship among them.

he case of Nepal shows the evidence for the spirit of envisaging a constituent assembly elected by the universal sufrage (irrespective of political parties and their self interests) for the task of writing a new constitution for a republic of Nepal symbolizes the spirit of Nepal’s diversity and aspirations of her people. Keyssar (2000) notes that:

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Agreeing with Alexander Keyssar that the process used to develop a new constitution possibly will inluence levels of conlict more strongly than the essential terms the document exemplify or the institutions it helps to build. Nepal has gone through a complex process of Constitution writing but could not get there yet to ratify the draft interim constitution of 2007. However it has produced anticipated results to a large extent, given the diicult transitions and political battles it had to go through.

Way Forward:

A number of political parties still arguing for the formation of ethnic states (mono ethnic entities) and few are arguing for a federal set up. he pressing step for Nepal now is to learn from the past democratic experience, protection of human rights and social development achieved in the recent troubled past. Without any further delays, the political party in power has to form the credible government and ind ways to make the Constitution writing complete and organize the Nepalese citizens to drive the democracy and nation building. Nikku (2012) further argued that:

‘Given the fact that Nepal is standing at a very crucial junc-ture of its history, the question of our political leaders’ vision of nation-building becomes crucial as this will shape the future of Nepal….Asian history ofers enough evidence on the ill ef-fects of nation-building on the basis of ethno-nationalism lead-ing to polarisation, internal conlict and international isolation. Nation-building on the basis of religion and ethnicity results in the consolidation of power in the hands of the core ethnic group which, in turn, develops and deploys state power to promote its own interests. If this trend continues, Nepal will not be able to realise its full potential. Hence the best way to heal the wounds of years of conlict and regime oppression in Nepal is to build it as a modern civic nation’ (Nikku, 2012: 5).

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Crafting Federal Democratic Republic of Nepal: Role of nepalese Political and Welfare Institutions.

SOCIOLOGY AND POLICY PRACTICES

IN CONTEMPORARY ISSUES

CONTENTS

LIST OF CONTRIBUTORS

ACKNOWLEDGEMENT

FOREWORD

Dr. Arry Bainus, MA

Dean, Faculty of Social and Political Sciences

Padjadjaran University

IntRODuCtIOn

Chapter

5

Crafting Federal Democratic

Republic of Nepal:

Role of nepalese Political and Welfare Institutions