Drafting the new constitution
The IC is more detailed than the 1990 constitution, with new understandings of
the nation and the state. Certain reforms had indeed been undertaken by the
executive and the parliament, like affirmative action in public-service recruitment,
but the period up to (and indeed after) the CA elections was used to resolve various
transitional issues. The IC guarantees that the CA will ‘formulate a new consti-
tution by the people themselves’ (Article 63 ).
Fundamental binding constitutional principles that underlie
the mandate of the CAThere are considerable advantages in adopting fundamental constitutional principles
in order to bind or guide the constitution-making process, in terms of the contents of
the new constitution. Agreement on some fundamental principles had emerged from
the 2006 Janaandolan, the Comprehensive Peace Agreement and the IC. The IC
does not clearly specify that the CA is bound by any fundamental principles, except
decentralisation of state power in the form of federalism. But the IC does contain
many fundamental principles of state policy and directive principles, and it could be
argued that these principles are intended to be the guidelines for the CA.
The most important of these principles pertains to the restructuring of the state,
which appears in several places in the IC. For example, Article 138 calls for the
‘inclusive, democratic and progressive restructuring of the state’ to bring about ‘an
end to the discrimination based on class, caste, language, sex, culture, religion and
region by eliminating the centralised and unitary form of the state’. Articles 33 and
34 contain many broad principles just as the Preamble of the IC does. Many of
these articles are concerned with democracy, inclusiveness, participation, human
rights and self-governance.
High-level commission on state restructuring
The IC also provided for a high-level commission to restructure the state
(Article 138 ). In Nepal the term ‘restructuring’ refers to changes to the structure
and institutions of government, measures necessary to advance historically
disadvantaged communities, methods of governance to ensure a greater degree of
public participation, etc., although it is not clear whether in Article 138 it means
only the elimination of the ‘centralised and unitary form of the state’, a response
to the demand for a federal or devolved system. It was expected that the commission
would be composed of experts who would make recommendations for consid-
eration by the CA. The commission was not established until after the third
extension of the CA’s tenure, the delay being due to the other major political parties’
fear of losing control of the agenda to the Maoists.