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Nepal: New Constitution Approved

(Oct. 1, 2015) On September 16, 2015, the Constituent Assembly of Nepal approved a new Constitution for the country (Taylor Gillan, Protesters Gather in Response to Nepal Constitution, PAPER CHASE (Sept. 21, 2015); Constitution of Nepal – Final, Legislature Parliament of Nepal website [click on PDF link] (last visited Sept. 28, 2015) (in Nepali); Constitution of Nepal 2015: Preliminary Draft [unofficial translation by the International Institute for Democracy and Electoral Assistance], CONSTITUTION.NET.) Nepal’s President, Ram Baran Yadav, signed the charter on September 20 and delivered a proclamation making it the law of the land. (Nepal Formally Adopts New Constitution amid Protests from Minorities, GUARDIAN (Sept. 20, 2015).) Nepal’s three main political parties had finally reached agreement on the document earlier this year, after years of delay caused by disagreements among them, and the Constitution was adopted by an overwhelming majority of the Assembly members (a vote of 507-25 of the 601-seat body). (Binaj Gurubacharya, Nepal Assembly Overwhelmingly Approves New Constitution, ABC NEWS (Sept. 16, 2015).)

The new Constitution, which replaces an interim document that had been in place for seven years following the resolution of the country’s civil war in 2006 and the end of Nepal’s monarchy, has 37 divisions, 304 articles, and 7 annexes. (Gillan, supra; Edappilly Jayakumar, Nepal Adopts Historic Constitution amid Protests, ASIA TIMES (Sept. 20, 2015); Interim Constitution of Nepal, 2063 (2007) (issued Jan. 15, 2007, as amended), Nepal Law Commission website.) A Constituent Assembly elected in 2008 did not succeed in drafting a new Constitution; a new body was elected in 2013. (Gurubacharya, supra.)

Features of the Constitution 

One key, strongly debated provision of the new Constitution is the replacement of the current unitary system of government with a federal system in which the country is divided into seven states, each with its own chief minister and local legislature that will elect the local government. (Nepal Formally Adopts New Constitution amid Protests from Minorities, supra; Krishna Pokharel, Nepal’s New Constitution, WALL STREET JOURNAL (Sept. 23, 2015).) Reportedly, “[t]his demarcation of state borders is one of the most contentious issues of the new constitution with many people in the country’s south opposed to the current borders and number of states.” (Pokharel, supra.) A high-level commission is to finalize the creation of the seven provinces within a year. (Jayakumar, supra.)

Other key aspects of the new charter are:

  • the envisioning of Nepal as a secular republic, with secularism defined as “religious and cultural freedom including protection of religion and culture prevalent since ancient time.” (Pokharel, supra.) Formerly, before the monarchy’s abolition in 2008, the country was a Hindu kingdom led by a constitutional monarch; the definition of secularism was added to the Constitution to allay the fears of Hindu groups who viewed secularism as a threat to their religion (id.);
  • introduction of proportional representation in the electoral system at both the federal and state levels, “to better include women, lower caste groups, tribal groups, people from the southern plains, Muslims and other marginalized communities into the state mechanism” (id.);
  • retention of provisions on citizenship whereby women married to foreign nationals cannot pass on their Nepali nationality to their children, who can become Nepalese only by naturalization, and foreign women married to Nepali nationals are only eligible for naturalized citizenship (id.);
  • retention of the cow, revered by Hindus, who constitute over 81% of Nepalis, as the country’s symbolic national animal (id.);
  • first-ever guarantees of the rights of “sexual and gender minorities,” with the Constitution stating that every citizen will receive a citizenship certificate indicating sexual identification, that no discrimination is to be made on the grounds of sexual orientation, and that the members of sexual and gender minorities will be entitled to state services’ benefits (id.); and
  • retention of the provision on abolishing the death penalty. (Id.)

Criticisms of the Constitution

While most Nepalis reportedly welcomed the new Constitution, it also has come under criticism. According to some groups, it is regressive in terms of citizenship rights; gender rights activists deem the provisions on citizenship by naturalization as discriminatory, and the Terai people in the southern part of Nepal, who are culturally close to neighboring Indians, have protested the Constitution’s barring naturalized citizens from assuming high political and security offices. (Id.) In addition, some ethnic and religious groups contend that their concerns about the definition of state borders were overlooked; they wanted more states, with some demarcated on the basis of ethnicity, larger territory for larger groups, and more seats for ethnic minorities in the Assembly and in government. (Nepal Formally Adopts New Constitution amid Protests from Minorities, supra.)