By Veluppillai Thangavelu
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Veluppillai Thangavelu

What is a constitution and what is its purpose? Stated simply, a country’s constitution is the fundamental laws and principles of a country or state on which all other laws are based.

All permanent organization of individuals, whether public or private, must have basic rules or laws for its establishment and for the conduct of its activities. A country normally has a centre and local governmental systems of government and both rests on constitutions.

In a democracy, sovereignty rests with the people and the enactment of a constitution is a function of the legislature composed of elected representatives.

A constitution, to be successful, must be both stable and flexible. There is no model or single constitution similar to one another since the history, geography and diversity of people and countries differ from one another. Every country has its own unique blend of history and people. There are parliamentary and presidential systems of government which we are familiar with through direct experience. There are also con-federal, federal, quasi federal and unitary constitutions.

As opposed to an authoritarian form of government, there are common characteristics found in constitutional democracy like separation of powers, checks and balances, rule of law, democratic elections, peaceful transfer of power, independent press, free and competent judiciary, freedom of opinion and expression, freedom of religion, freedom of association, respect for fundamental human rights etc. This list is by no means exhaustive, but gives the fundamental features of a good constitution that will stand the test of time. The methods of amending or replacing the constitution are also provided by the constitution itself.

Sri Lanka is in the process of enacting its fourth constitution since the country gained independence in 1948. The republican constitution enacted in 1972 and the presidential system of constitution adopted in 1978 has failed to produce stability and peace in the country. Both these constitutions laid the foundation for a bloody civil war that lasted for 25 years. They imposed the will of the 75% majority Sinhalese on the 25% national minorities, especially the Thamils. They ignored completely the language rights of the Thamil people by installing Sinhala as the sole official language. In a constitutional democracy all citizens must be treated equally if the country is to progress towards political stability and economic prosperity.

The land locked Himalayan country of Nepal, after years of instability caused by a Maoist insurgency and a unitary constitution, failed to achieve stability, peace and prosperity.

Nepal, until the abolition of the constitutional monarchy was the world’s only country with Hinduism as state religion. The country is now formally a secular state with constitutional democracy. Due to the arrival of various settler groups from outside through the ages, Nepal is now a multiethnic, multicultural, multi religious and multilingual country. Central Nepal was split in three kingdoms from the 15th century until the 18th century, when it was re-unified under the Shah monarchy.

Nepal experienced a struggle for democracy in the 20th century. During the 1990s and until 2008, the country was in civil strife. A peace treaty was signed in 2008 and elections were held in the same year. In a historical vote for the election of the constituent assembly, Nepalese parliament voted to oust the monarchy. On 18 May 2006, the House of Representatives unanimously voted to curtail the power of the king and declared Nepal a secular state. On 28 December 2007, a bill was passed in parliament to amend Article 159 of the constitution – replacing “Provisions regarding the King” by “Provisions of the Head of the State” – declaring Nepal a republic.  The bill came into force on 28 May 2008. King Gyanendra, who came to power in 2001 after the tragic murder of the previous king, abdicated the throne. Nepal’s first president was chosen by parliament the following month.

On 21 November 2006, Nepal’s decade-long armed conflict ended with the signing of the Comprehensive Peace Accord (CPA) between the Government and the Communist Party of Nepal (Maoist). A central pillar of the accord is the writing of a new constitution that grants equal rights and opportunities to all Nepalese people. In April 2008, elections to the Constituent Assembly (CA) were held. The original timeframe of completing the constitution by 28 May 2010 proved too ambitious given the competing political agendas and the need for extensive public consultation. As a result the term of the assembly was extended four times and the last deadline was for 27 May 2012 to prepare a draft constitution. However the Assembly was not able to produce a constitution and it was dissolved on 27 May 2012.

After a few months’ stalemate, the political parties agreed to go for a fresh mandate under an interim election government. Elections to the second Constituent Assembly were successfully held on 19 November 2013 and subsequently a new government and a new 601-member Constituent Assembly were formed to formulate a new Constitution.

Nepal is bordered by China to the north and India to the south, east and west. It is separated from Bangladesh by a narrow Indian corridor and from Bhutan by the Indian state of Sikkim. Nepal is home to eight of the world’s tallest mountains, including Mount Everest, the highest point on Earth.  Here is a brief profile of the country.

Country                        –       The Federal Democratic Republic of Nepal
Population                   –      26,371,000
Capital                          –      Kathmandu (741,000)
Area                             –      147,181 sq. kilometres (56,827 square miles)
Language                      –      Nepali (58%) Maithili, Bhojpuri, Tharu, Tamang, Newari, Anhadi, English and many other languages and    dialects     (2011)
Religion                        –      Hindus (81.3%)  Buddhists (9. %), Muslims (4.4%) Kirant (3.1%) Christians (1.4%) (2011)
Currency                       –      Nepalese rupee
Life Expectancy            –     59 years
GDP per Capita            –     U.S. $1,400
Literacy Percent            –      45

Nepal has been a unitary country since its inception in 1768. Hinduism is the predominant religion and is also home to Lumbini, the birthplace of Siddharta Gautama, the founder of Buddhism- the country’s second largest religion. The country also has minorities of Muslims, Kiratans and Christians. It is a multiethnic nation with Nepali as the official language. A monarchy throughout its history, the aristocratic Rana dynasty administered Nepal’s government as hereditary Prime Ministers until 1951. A multi-party democracy evolved until 1960, when King Mahendra enacted the panchayat system. In 1990, a parliamentary government was permitted by King Birendra. Communist Maoist insurgency and mass protests against the authoritarian King Gyanendra in 2005, which led to the abolition of the monarchy in 2008.

Finally, after many years of struggle, the 2nd constituent assembly promulgated a new democratic constitution which came into effect on September 20, 2015. President Ram Baran Yadav announced the promulgation of Constitution of Nepal  at a special meeting of the Constituent Assembly. This is the seventh constitution of Nepal. An overwhelming majority of 598 lawmakers endorsed a total of 308 articles. The approval of the Constitution has a deep meaning for all of those involved in the 1996 – 2006 Maoist conflict.

The new Constitution establishes a federal system, with seven provisional states and three levels of government: federal, provincial and local. In other words Nepal henceforth will be a secular federal democratic republic with decentralised power to the states.

The term “federalism” is derived from the Latin term foedus, i.e. covenant, referring to the fact that such a covenant is usually the starting point for the merger of two or more political entities. Federalism is a system of government that establishes a constitutionally specified division of powers between different levels of government. There are usually two main levels: (i) a national, central or federal level; and (ii) a state, provincial or regional level and local level.  Federalism thus allows distinct ethnic communities, defined by their territorial boundaries, to exercise guaranteed autonomy over certain matters of particular importance to them while being part of a larger federal union through which shared powers are exercised over matters of common concern. One of the main benefits of federalism is that it provides a framework for the recognition of ethnic, religious, linguistic or other cultural communities, reflecting their desire to be recognized as a people with a distinct identity and particular interests.

A proposal to declare Nepal as a Hindu nation instead of a secular state was rejected unanimously.

The new constitution establishes Nepal as secular and federal democratic republic with bicameral parliament. Executive rights of the country shall vest on the council of ministers while the president would be ceremonial head-of-the-state. It establishes independent judiciary and competitive multi-party democratic system with periodic elections. Enshrines fundamental rights, civic freedom, human rights, voting rights and full press freedom etc. to its citizens.  Power sharing and autonomy can foster peaceful accommodation and prevent violent conflicts among culturally plural societies.  By allowing ethnic groups to govern themselves in cultural and developmental matters, it lessens their conflicts with the central state. Many of the conflicts of the identity movements are in cultural issues like religion, language, education and so on.

The preamble of the new constitution says: “Realising a dream cherished by the Nepali people since the past 65 years, the new constitution will formally take the country towards a federal structure from the existing unitary structure that remained rooted in the country for 240 years.”

The preamble of the constitution also mentions people’s competitive multi-party democratic system, civic freedom, fundamental rights, voting rights, full press freedom, independent, fair and competent judiciary and building of a prosperous nation with the commitment to socialism based on rule of law.

It took eight full years after adoption of the interim constitution in 2007 to promulgate the new constitution. With this Nepal now stands as youngest federal republic in the world. The enactment of the new Constitution was not easy, it was highly strenuous and tortuous but the legislators finally succeeded.

Nepal is not the only war-torn country to opt for federalism as part of the solution to its problems. Several countries have adopted or readopted federalism after armed conflict. Mexico (1971), Argentina and Venezuela (more than once), Nigeria (1966-70), Ethiopia (1991), Spain, Bosnia and Herzegovina, Sudan, Iraq, and the Democratic Republic of Congo are some other examples.

There are 25 federations in the world today representing 40 percent of the world’s population. At the beginning of the 21st century, this is a remarkably popular form of government. It provides unity in diversity.

Today, United States, Switzerland, Australia, and Canada are examples that federalism can provide stability as well as prosperity. Each of these has been under the same constitution for more than 100 years. The United States federal constitution is 240 years old, Canada will be celebrating its 150th birth day next year, and Australia is 115 years old and Switzerland 168 years, replaced by a new constitution on April 18, 1999 that established 26 cantons.

UN Human Development Index measured 175 countries according to their economic prosperity, respect for rights, and quality of the lives of their citizens. Out of the top 20, eight, are federations.

Of course federalism does not automatically create success. It ought to have an appropriate structure. There are are a great variety of federal forms or structures. Federalism has succeeded in countries that are multi-ethnic like Switzerland, like Canada with French and English, India with many different languages and religious groups, Nigeria with 51% Christians and 49% Muslims and so on. Upholding rule of law is a must, otherwise federalism will not work.

It will be seen there are significant similarities between Nepal and Sri Lanka. The question is will Sri Lanka  learn from Nepal the birth place of Buddha?