This document serves as a guide to constitution making in Nepal. It provides a brief history of past constitutions in Nepal, including an evaluation of the strengths and weaknesses of the 1990 Constitution, to enable a better understanding of the current issues and debates. The document also discusses the controversies surrounding political reform and provides cross-references to the experiences of other countries relevant to the current process in Nepal.
The book notes that the 1990 Nepal Constitution was the first constitution in Nepal to refer to the people's sovereignty - all earlier constitutions proclaimed, or assumed, only the sovereignty of the king. However, it was ambiguous in its treatment of sovereignty as it recognised both state authority and people's sovereignty, thereby leaving itself subject to interpretation, even confusion and manipulation.
Nepal is using the 1990 Constitution, with its unsuitable provisions modified or deleted, as an interim constitution. The Interim Constitution guarantees a constituent assembly 'to formulate a new constitution by the people themselves' thus considerable public attention has focused on the composition and role of the Constituent Assembly.
The authors argue that there is only one method for amending the contents of the Interim Constitution. An amendment can be passed if it is voted for by at least two-thirds of all the existing members
- since members of parties are subject to party discipline, and because all important decisions are being taken by party leaders, the leaders of the three main parties have been able to change the Interim Constitution at will;
- as of now, there is no real entrenchment of the provisions of the Interim Constitution - this flaw in the procedures for amendment has somewhat devalued the Interim Constitution and its image as a supreme, constitutional document.
Consequently, the constitution-making process will be dominated by political parties, where the most influential members will probably be drawn from the same circle that dominated the constitution-making process in 1990.
There is also a lack of space for the people, in general, and civil society, in particular, contrary to the earlier commitments made by the seven parties now in government. The Interim Constitution has no provisions for the involvement of the people, other than in their capacities as voters.
This document does not offer particular solutions, but provides an analysis of different options that emerge when making a new constitution. It aims to encourage full participation in the process of constitution making by introducing readers to constitutionalism, the roles of constitutions, and to key constitutional concepts.
