Nepal | June 16, 2019

Experts say draft littered with errors

Himalayan News Service

preliminary draftKATHMANDU, July 18

A group of lawyers on Saturday reviewed almost all major provisions of the draft constitution and pointed out major flaws in the provisions, in particular those related to federalism, citizenship, judiciary, fundamental rights and inclusion.

Addressing the programme organised by the Constitutional Lawyers Forum, constitutional expert Chandra Kanta Gyawali said there was a danger that federalism might not be realised, and even if it was, Nepal would only have centralised federalism where federal units would be at the mercy of the centre.

Gyawali said although the draft constitution talked of fixing remaining issues of federalism within six months, it did not reflect its strong commitment to federalism.

“People have delegated their power to this Constituent Assembly to frame a new constitution and delegated powers cannot be re-delegated,” Gyawali said, adding that the CA’s mandate was to deliver a complete constitution without leaving federalism issue for the transformed Parliament to decide.

He said federalism might not be a reality because the title of the draft constitution did not reflect two key features of the constitution —republicanism and federalism. Federalism does not figure in the definition of Nepali state, he argued.

Gyawali said the draft constitution intends to give major revenue collection rights to the central government. Federal Parliament’s power, he argued, to dissolve the provincial and local government was against the concept of autonomy.

Once the constitution is promulgated, Gyawali argued, the Interim Constitution will cease to exist, therefore, it will be wrong to interpret that the transformed Parliament will have additional term of two and a half years.

Advocate Sharmila Shrestha, Indu Tuladhar and Luma Singh Bishwakarma said the ‘and’ provision of the citizenship clause in the draft constitution would render many children stateless.

Shrestha said the ‘and’ provision challenged independent status of mother and father.

Shrestha said the draft constitution proposed to give naturalised citizenship to children of Nepali citizen married to foreigners. Nowhere in the world is naturalised citizenship given to the children of the citizens,” Shrestha argued.

Bishwakarma said citizenship right was an independent right and hence a child wishing to get Nepali citizenship by descent should not be required to prove that both of his/her parents are Nepali citizens.

“The ‘and’ provision in the draft is against citizen’s right to life, dignity and equality,” Bishwakarma added.

Advocate Lalit Basnet said since the President would be elected by elected representatives and work as the patron of the constitution he/she should be given certain powers under the new constitution.

He said if the President was not given some powers, there would be none to check the monopoly of the executive head in certain situations.

“We have seen the government bringing ordinance two days ahead of the Parliament session or a day after the session ends. If the President does not have discretion to check this act, the executive head could act arbitrarily,” Basnet added.

Vice President of Nepal Bar Association Tika Ram Bhattarai said the draft constitution rightly provisioned for Constitutional Court but there should not be majority of Supreme Court justices in it.

Advocate Ganesh Dutta Bhatta said the draft constitution’s provision to bar lawmakers from moving a no trust motion in the first two years was against the norms of Parliamentary system.


A version of this article appears in print on July 19, 2015 of The Himalayan Times.


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