Opportunities and Challenges

Democratic History

1951Transitional Democracy (first public school)

1991Democracy reinstated (constitutional monarchy)

1996People’s War (Maoist insurgency)

1959Multiparty Democracy

May 2010The new constitution

May 2008Democratic Republic

2006Peace Accord1960

Monarchy

1999Local Self Governance Act (LGSA)

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Nepali Constitutions

• In 1864, Jung Bahadur codified laws and introduced rules for governance (National Civil Code 1864), but they were mostly concerned with relationship of the castes

• Nepal had six constitutions: 1948, 1951,1959,1962,1990 and the Interim Constitution of 2007

• Jana Andolan I led to the 1990 Constitution

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Making of the 1990 Constitution

• It was largely the work of Nepali Congress and CPN(UML)

• It was made through greater consultation of people unlike previous Constitutions

• The drafting commission disregarded recommendations related to rights and demands of Dalits, ethnic and marginalized communities, women and rural people

• The cabinet and subsequently the King made changes in the drafts prepared by the commission

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Why the 1990 Constitution failed• Elites had upper hand

• Affirmative actions, better representation and decentralization weren’t promoted

• Politicians were corrupt and indulged in favoritism

• Unconstitutional initiatives by the King

• Constitution was unable to address the diversity of Nepali people

• Maoist insurgency in mid-1990

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Jana Andolan II

• Jana Andolan II has given us a new opportunity to rewrite our constitution for a new Nepal.

We need to address the concerns of marginalized communities and leverage our diversity towards a prosperous Nepal.

• Themes relevant to the making of the New Constitution:1) Diversity2) Rights3) Federalism4) Decentralization

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Addressing Diversity and the Issue of Discrimination

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Diversity in Nepal: Religion

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Diversity in Nepal: Language

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Diversity in Nepal: Ethnicity

The Issue of Discrimination

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The cause of Discrimination in Nepal

1. Centralized System: Kathmandu focused system

2. Disparity in Opportunities: Cumulative disadvantage

3. Power centralized on Elite Group

4. Cultural differences / Lack of Appreciation: Hinduism dominates Untouchability persists

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How can we address this issue?

• Promoting Diversity

• Ensuring Basic Rights

• Federalism

• Decentralization

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Rights

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Final draft of CA Committee on the Protection of Rights of Minorities and Marginalized Communities

• Definition of the Nation: Nepal is a multiethnic, multilingual, multi-religious, federal, democratic republic, secular, inclusive State with full proportionality based on equality and justice

• Right of Language: - Nepali as official business language - State can choose one or more languages in the state as official language

• Citizenship: In the name of mother, father or both

• Right to equality: state shall make compensation for the victims of the past by positive discrimination for their protection, development and empowerment

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Protection of Rights and Minorities • Rights against discrimination and untouchability

• Cultural and Educational rights: - education up to high level free of cost - communities can run educational institutions as desired by them• Right to religion

• Right of the minorities, marginalized and excluded communities

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Rights – Gender Issues• Provision for citizenship to foreign spouse

• Equal right to ancestry property

• Equal pay and work opportunities

• Equal ownership and access to state resources

• Right to decision making in marriage, divorce and reproduction

• Right to reproductive health

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Rights and Proportional RepresentationAn Example:

• Scholarship Regulation 2063

– For the economically and socially marginalized –25%• For Madhesis ----- 20%

– Among them for the Dalits ---- 3%• For muslims ------ 2%• For families of martyrs and the disappeared --- 3%

– For women -------- 33%• Dalit women ---- 3%• Muslim women ----2%

– For the disabled --------- 2%– For the Janjatis ----------- 27%– For the dalits ------------- 9%– For backward rural communities ------------4%

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Federalism

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Federalism• Federal system: - Certain powers are exercised below the national level (these are

constitutionally guaranteed) i.e. by the states - These powers do not depend on the national government - Ex: USA, India

• Unitary System: - Central government makes laws for the entire country - Ex: Nepal • Decentralization: - Decentralization empowers communities

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Federal Nepal

• Interim Constitution 2007: “…. the state shall eliminate existing forms of centralized and unitary structure and shall be made inclusive and restructured into a progressive, democratic federal system.”

• Issue of Contention: How to restructure the country into states:

- Ethnically ?

- Geographically ?

- Mixed system ?

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Proposed Models in Nepal

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Evaluation of Maoist Model (old)Provinces Population

(%)PCI (%) * Revenue

Share (%)Prominent

Ethnicities (%)

Kirat 9 84 0.6 Khas-27, Rai-21, Limbu-12, Tamang-7

Madhes 39 95 45.7 Maithali-31, Bhojpuri-22, Khas-12, Tharu-8

Tamsaling 11 100 3.3 Tamang-31, Khas-31, Newar-9, Magar-6

Newa 7 224 45.6 Khas-36, Newar-35, Tamang-9, Magar-3

Tamuwan 7 105 1.3 Khas-37, Gurung-17, Magar-12, Newar-5

Magarat 9 74 0.4 Khas-41, Magar-28, Newar-2, Gurung-1

Tharuwan 10 90 2.9 Tharu-35, Khas-28, Awadi-9, Magar-4

Bheri-Karnali 4 71 0.1 Khas-38, Magar-10, Gurung-1

Seti-Karnali 4 72 0.1 Khas-67, Magar-1

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* Per Capita Income expressed as percentage relative to the national average

Evaluation of model proposed by Surendra R Devkota and Shiva Gautam

Provinces Population (%)

GDP (%) PCI (%) Revenue Share (%)

Prominent Ethnicities (%)

Koshi 34 29 84 12 Maithali (34)Khas (17)Rai (7)Tamang (5)

Gandaki 36 38 104 40 Khas (26)Maithali (21)Bhojpuri (10)Tamang (8)

Karnali 23 17 78 3 Khas (41)Tharu (15)Magar (8)Awadi (4)

Kathmandu 7 16 224 45 Khas (36)Newar (35)Tamang (9)Magar (3)

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Hybrid Model of Cooperative Federalism

- Proposed by Professor Alok Bohora

- 4 federal states

- Each state to be divided to 3-5 regions based on ethnicity (up to 13 regions)

- Basically, a 4-tier system (center -> state ->region -> village)

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Caveats in Federalism• Federal system will give the opportunity to empower marginalized communities and decentralize the country, but federalism per se will provide no magic type recipe to ensure political integration or economic prosperity.

• Implementation is as important as the model of federalism.

• Federalism should help decentralize power but should also help create a sense of national unity (unity within diversity).

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Decentralization

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Decentralization

Transfer of decision-making power from central government to sub-national governments (at state level and local level)

3 Main Types

• Political Decentralization: representative government across all tiers of government

• Fiscal Decentralization: freedom over fiscal capacity (i.e. freedom to make revenue and expenditure related decisions)

• Administrative Decentralization: transfer of responsibility for the planning, financing and management from the central government to the local

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Advantages

• Increased participation, representation and accountability

• Less opportunities for corruption

• Multiple layers of government – more opportunities for creative new solutions

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Disadvantages

• Added layer of bureaucracy – increased costs and inefficiency, and coordination problems

• Possibility for the “decentralization of corruption”

• In the absence of clear demarcation of responsibilities, functional overlapping

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Democratic History

1951Transitional Democracy (first public school)

1991Democracy reinstated (constitutional monarchy)

1996People’s War (Maoist insurgency)

1959Multiparty Democracy

May 2010The new constitution

May 2008Democratic Republic

2006Peace Accord1960

Monarchy

1999Local Self Governance Act (LGSA)

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Current StructureCenter

58 Municipalities3913 Village Development Committee

9 Wards/VDC

75 District Development Committees

9 Wards/Municipality

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Constituent Assembly Committees Constitutional Committee 1 1. Constitutional Committee

Thematic Committees 10 2. Committee on Preservation of the National Interest 3. Committee to Decide the Form of the Legislative Body 4. Committee to Decide on the Basis for Cultural and Social Commitments 5. Committee on the Division of Natural Resources, Financial Rights and Public Revenue 6. Committee to Decide on the Structure of the Constitutional Bodies 7. Committee on the Judicial System 8. Committee to Determine Forms of the Governance of State 9. Committee on Restructuring the State and Distribution of State Power 10. Committee on the Protection of the Rights of Minorities and Marginalized Communities 11. Committee on Fundamental Rights and Directive Principles

Procedural Committees 3 12. Committee on Citizens Relations 13. Committee on Public Opinion Collection and Coordination 14. Committee on Capacity Building and Resource Management

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Procedures to pass a constitution bill

• The CA shall vote on the preamble and each article

• There must be at least 2/3 members present

• The motion must pass unanimously

• If unanimous consensus not reach, the disagreeing members will hold a consultation session and CA will re-vote

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Constitution – a reality check!Proposed time line: - First draft of the constitution to be sent out for public review: April 16th, 2010 - Review and feedback collection for three weeks - Final draft to be discusses, amended and passed by the house: May 21st, 2010 and to be promulgated on May 28th, 2010 - So far only three committees have submitted their final draft

Interim Constitution 2007: The term of the Constitution Assembly can be extended for six month (looks very likely)

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Discussion Questions

How do we empower marginalized ethnicities without endangering national

unity?FEDERALISM

रा�ष्ट्रि�य एकता�मा� क नै� प्रक�राक� आं�च नैआंउनै� गरा� कसरा� हा�मा� पि�छपि�एक� जनैज�पिताहारुला�ई

सशक्त ताल्य�उनै सक्तछ#?

What is the most effective decentralization strategy for the

development of Nepal?DECENTRALIZATION

नै���लाक� पि$क�सक� ला�पिग सबभन्दा� प्रभ�$क�रा� पि$क� न्द्री*कराण राणनै�पिता क� हुनै सक्तछ?

How do we leverage our diversity towards unified and prosperous Nepal?

DIVERSITY एक-क. ता ताथा� समा.द्ध नै���ला पिनैमा�1ण गनै2 दिदाश�मा�

हा�म्रो� पि$पि$धता�क� क� कस्ता� ढं�गब�ट सदु�य�ग हुनै सक्तछ?

How can we ensure that fundamental rights such as, equal access to education, health, justice and peace are protected?

RIGHTS सब�क� ला�पिग समा�नैरु�मा� उ�लाब्ध गरा�इनै�नै2

शिशक्षा�, स्$�स्थ्य, न्य�य ताथा� श�न्तिन्ता जस्ता� मा@शिलाक अष्ट्रिधक�राहारुक� स�राक्षाणला�ई कसरा� सपिनैश्चिCता

ताल्य�उनै सपिकन्छ?

Opportunities and Challenges