The Constitution of Nepal (2072), written and adopted by the popularly elected Constituent Assembly, and supported by almost 90 percent lawmakers, was promulgated by the President of Nepal on 20 September 2015.The Constitution, which proclaims Nepal as a Federal Democratic Republic was endorsed by 507 members in favor, with 25 voting against. The remaining members of total 598 members were absent. The constitution provides for a bi-cameral parliamentary form of government with the President as the constitutional head. It provides for an independent judiciary with provision for a constitutional bench.
The Constitution provides a three-tier governing structure incorporating the center, federal provinces and local governments. The Constitution guarantees one-third of legislative memberships at all levels of governance to women. Forty percent of parliamentary seats are set aside for fulfillment through proportional representation of various ethnicities and regions, primarily based on population. The erstwhile unitary system of the country is now replaced with a seven-federal provincial structure.
The Constitution of Nepal is a modern-day document which responds to aspirations of Nepali people living in mountains, hills and the Tarai/Madhesh plains. The Constitution provides extensive coverage of fundamental rights including social, economic and cultural rights, with the state bound to work towards progressive realization. The Constitution extends affirmative action for groups who have been historically disadvantaged and marginalized. The rights of women, Dalits, indigenous and other minorities have been guaranteed. Independent constitutional commissions are provided for women and the Dalit, Janjati, Madhesi, Tharu and Muslim communities, and the Human Rights Commission has been given the mandate to recommend reforms laws, policies and practices in order to end discrimination.
This long-awaited statute written and promulgated by a popularly elected Constituent Assembly reflects the collective aspirations of the Nepali people. There is national commitment to build an equitable, just, inclusive and prosperous society based on the principles of equality and proportional inclusiveness. Some specific highlights of socio-economic provisions in the constitution which makes it unique in the modern era, including among countries developed or developing, in terms of inclusive character and empowerment of the socially marginalized communities are given below.
Inclusive provisions Preamble
The preamble of the constitution ensures the building of an equitable society on the basis of proportional, inclusive and participatory principles. The preamble further states the determination to achieve economic equality and social justice by recognizing the diversity of caste, language, religious and cultural beliefs and geography prevailing in the country.
Social Inclusion
Exploitation based on religion, custom and culture, ethnic and other kinds of bias is prohibited (Article 29-2). A person who is a permanent resident at the time of promulgation of this constitution, and is a child born of a father or mother having a Nepali citizenship, will be entitled to a citizen by descent (Article 11-2 (b). Any foreign woman married to a Nepali citizen is entitled to naturalized citizenship, upon her wish (article 11-6). Economically deprived, disabled, vulnerable, helpless single woman and disabled children and endangered ethnic communities, as well as those not being able to care themselves, are entitled to social protection in accordance with law (Article 43). Equal participation is ensured in all national apparatus through the principle of inclusiveness: socially deprived Women, Dalit, indigenous groups, Ethnic groups, Madheshi, Tharu, Minorities, Disabled, Marginalized, Muslim, backward groups, gender minorities, youth, farmers, labor, those underprivileged or located in backward areas, and economically deprived Khas-Arya. (Article 42-1 and 71-6)
In the National Assembly, each province shall elect eight members, of which at least three shall be women. One member shall be from Dalit and one from either physically impaired or minority groups (Article 86(2-a)). Appointment to constitutional bodies shall be based on the principle of inclusion. (Article 283)
Empowerment
Women shall have the right of participation under the principle of proportional inclusiveness in all national apparatus (Article 38-4). The President and Vice-President elected in accordance to this constitution shall be of different gender or community (Article 70). The Cabinet shall be constituted bearing in mind the principle of inclusion (Article 76-9). Political parties are required to ensure proportional representation in election candidacies through the 'closed list' system, with references to women, Dalit, indigenous and ethnic groups, Khas-Arya, Madeshi, Tharu, Muslim, and those from backward area (Article 84-2). The President, under recommendation of the Government, shall nominate three members to the National Assembly, of whom at least one shall be a woman (Article 86-2 kha). Either the Speaker or the Vice-speaker of the House of Representative shall be a woman (Article 91(2)). Either the Chair or the Vice-Chair of the National Assembly shall be a woman (Article 91-2). At least one-third of the total number of members to be elected from each political party to the provincial assemblies shall be women. (Article 176 -9) Either the Speaker or the Vice-Speaker of the provincial assemblies shall be a woman. (Article 182-2) At least one third of the total number of members to be elected from each political party to the Provincial Assembly shall be women (Article -182-2). Similarly, provisions have been made to ensure inclusion of women and Dalit in all municipal and other local bodies
Employment and livelihood
There shall be no discrimination in wages and social security for similar jobs on gender basis (Article 18-4). All siblings have equal rights to ancestral property (Article 18-5). There shall be no discrimination and untouchability on the grounds of origin, caste, community, society, job, profession and physical conditions (Article 24). No one shall be subjected to human trafficking, slavery and bonded labor (Article 29-3). All disabled and economically-deprived citizens have right to free higher education (Article 31-3). Free access to education is assured to visually-impaired persons in the Braille script and speech-impaired persons through sign language (Article 31-4). All communities have the right to impart education through the mother tongue, and have the right to open schools and to administer them towards this purpose (Article 31-5). All communities have freedom of communicating in their local languages (Article 32-1). All communities have freedom to lead distinctive cultural lives (Article 32-2). All communities are empowered to protect and preserve their languages, scripts, cultural civilization and heritage (Article 32-3). The right to employment is ensured (Article 33). Entry into the Nepal Army based on the principle of inclusion is ensured (Article 267(3)). Right against untouchability and discrimination is guaranteed (Article 24 (1) to (5)). Recruitment into Provincial Government Service including Provincial Civil Services through the provincial laws shall be carried under the principle of proportional inclusion. (Article 285-2)
Social security
The constitution provides a number of rights to ensure social security for all the Nepalese people, some of which are: The Right to Food (Article 36); the Right to Housing (Article 37); the Rights of Dalits as enshrined in Article 40; the Rights of Children as enshrined in Article 39; the Rights of Senior Citizens as enshrined in Article 41; the Right to Social Security as enshrined in Article 43. Further, the constitution protects the rights of LGBTs by not permitting any discrimination on the basis of sexual orientation.
Constitutional bodies
Additional constitutional bodies have been set up to monitor, further define and facilitate the implementation of the rights and provisions assured by the constitution so that the citizens are not impaired from freely availing them. They are: The National Women Commission (Article 252); the National Inclusion Commission (Article 258); the Indigenous Peoples' Commission (Article 261); the Madheshi Commission (Article 262); the Tharu Commission (Article 263); and the Muslim Commission (Article 252).
The author is Minister of Finance
Extracted from the government's Briefing Paper presented on September 28 for the benefit of Kathmandu-based diplomats to make them aware of inclusive provisions in new constitution
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