Post Conflict Constitution Making in Nepal: Towards 'Inclusiveness' in Democracy

2008 ◽  
Author(s):  
Semanta Dahal
Keyword(s):  
Post Conflict ◽  
Constitution Making

scholarly journals The Rejection of Constitutional Incrementalism in Nepal's Federalisation

2018 ◽  
Vol 46 (4) ◽  
pp. 521-540
Author(s):  
Mara Malagodi
Keyword(s):  
Eighteenth Century ◽  
Collective Identity ◽  
Constitutional Amendment ◽  
Divided Societies ◽  
Contentious Issue ◽  
Post Conflict ◽  
Late Eighteenth Century ◽  
Institutional Choices ◽  
The Relationship ◽  
Constitution Making

The relationship between federalism and identity was the single most contentious issue in the drafting of Nepal's 2015 Constitution, and remains an embattled feature of the country's post-conflict constitutional settlement. This article explains why ‘constitutional incrementalism'—the innovative constitution-making strategy for deeply divided societies theorised by Hanna Lerner—was ultimately (and wisely) rejected in Nepal's federalisation process. Historically a unitary state since its creation in the late eighteenth century, Nepal committed itself to federal restructuring in 2007, but profound disagreements endured over the set of institutional choices concerning the features of Nepal's federal arrangements throughout the constitution-making process (2008–15). Constitutional incrementalism with its emphasis on deferral, ambiguity and contradiction was thought of in some quarters as a pragmatic and instrumental way out of Nepal's political impasse. In the end, the 2015 Constitution expressly named the provinces (even if by just using numbers) and demarcated their boundaries already at the time of its promulgation. Any changes to this framework can only take place by way of constitutional amendment. This article explains why the incrementalist approach was rejected in Nepal's federalisation process, and reflects on the conditions under which constitutional incrementalism may succeed in societies that present profound disagreements over the collective identity of the polity.

The United Nation's Role in Post-Conflict Constitution-Making Processes: TWAIL Insights

2008 ◽  
Vol 10 (4) ◽  
pp. 411-420 ◽  
Author(s):  
Vijayashri Sripati
Keyword(s):  
Cold War ◽  
International Law ◽  
Third World ◽  
Post Cold War ◽  
The Third ◽  
Post Conflict ◽  
The Third World ◽  
Constitution Making

AbstractThis essay analyzes how Third World Approaches to International Law (TWAIL) insights have illuminated some but not all themes relevant to understanding post-Cold War internationalised constitution-making processes such as those of Afghanistan and Iraq and the United Nation's (UN) constitutional support therein. It argues that the UN's constitutional support has evolved into an established practice and that the need to interrogate the very idea of the internationalisation of constitution-making, – essentially a domestic process – places the legitimacy of, and the explanations offered for such support into question. It concludes that given its historic opposition to and commitment to end the exploitative relations between the Western powers and the Third World and all contemporary colonial forms in the Third World, TWAIL is the best optic through which the UN's constitutional support in general and its role in the constitution-making process of Afghanistan, in particular, may be examined. For only then can the broader historical and ideological aspects and colonial continuities fundamentally significant to understanding internationalised constitution-making processes and the UN's role therein be uncovered.

Eternity in Post-Conflict Constitutions

2021 ◽  
pp. 51-86
Author(s):  
Silvia Suteu
Keyword(s):  
State Building ◽  
International Norms ◽  
Post Conflict ◽  
Political Commitments ◽  
Constitution Making

This chapter analyses eternity clauses as drafting mechanisms that facilitate and safeguard post-conflict constitution-making. It discloses the constitutional bargaining dynamics specific to conflict-affected settings and reveals the largely ignored function of unamendability. It also highlights three distinctive roles played by post-conflict unamendability: signalling compliance with international norms, ensuring electoral turnover, and insulating political and military elites. This chapter shows how contested and sometimes incoherent the unamendable values in post-conflict constitutions can be, reflecting the messiness of constitution-making processes in certain contexts. It outlines the risks associated with expecting too much from eternity clauses in fraught state-building settings that are habitually characterized by institutional weakness and shifting political commitments.

Construing Contemporary Cosmopolitan Constitution-Making: A Comparative View

Global Jurist ◽  
2018 ◽  
Vol 18 (2) ◽  
Author(s):  
Qerim Qerimi
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
Domestic Sphere ◽  
International Human Rights ◽  
Post Conflict ◽  
International Human ◽  
Law Making ◽  
Constitution Making

Abstract The newest and gradually evolving trends in global law-making have been defined by an ever increasing interplay between rules and principles of different legal orders and between national legal orders and international legal order. References in national constitutions to the binding force of international law within the domestic sphere and sometimes the primacy of such internationally-made law over national laws are now a widespread and unsurprising phenomenon. Clauses referring to international human rights, including direct applicability of specific international human rights instruments, also to international organizations such as the UN, or accession to new international organizations, including transfer of sovereignty, can also be found in a significant variety of cases. The most unique feature of these trends could, however, be the establishment of national constitutional and legal order based on, or modeled after, international law and comparative law. At a broader constitutional level, for example, the international community has played a pivotal role in the style and substance of the constitutions of a number of post-conflict, newly-formed or transformed societies (e. g., Constitutions of Cambodia, Bosnia and Herzegovina, South Africa, East Timor, Afghanistan, Iraq, Kosovo, Libya, and South Sudan). This process of constitution-making influenced by, based on, or modeled after, international law, has unique features that resonate with a cosmopolitan constitutional law-making. This paper seeks to understand the contours of this phenomenon, ascribe the proper value, and identify the degree to which contemporary constitution-making conforms to the original ideals of cosmopolitanism.

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