A Comparison of South Asian Constitutions

Nepal Foreign Affairs
16 December, 2015 1:35 am

By jivesJivesh Jha–

It is a well-settled principle that five fingers are like ‘brothers’ but not equal. In the similar vein, though the member nations of South Asian Association for Regional Corporation (SAARC) are associated to each other for a cause, nevertheless is different in every manner—be it constitutionally or geographically. After going through the constitutional provisions of the eight member nations of SAARC, it became clear that though these countries have put efforts to bestow constitution as supreme against parliament, they differ on many occasions.

In a bid to rule out the possibility of illiberal democracy, these countries have put effort to prioritize the liberalism preceded democracy, allowing the latter flourish. It’s often argued that democracy and liberalism usually proceed hand in hand. The liberal democracy flourishes with the constitutional provisions delimiting the scope of authoritative rule, allocating the parliamentary power to make Bills.

The Constitution of India (COI) being the largest in the world and oldest constitution in the South Asia region and the newly enacted Constitution of Nepal (CON) provisions that Bill becomes law when passed by the both Houses of parliament and certified by the president. However, the similar provisions for Bills have been embodied in the constitution of Bangladesh and Pakistan. In order to not to taste the bitter grapes of the military dictators in foreseeable days; the Pakistani parliament in 2010 brought 105 amendments to alter 26 Articles enacted by the then military dictator Pravez Musharraf, paving the ways for holding a referendum on the national issues having far reaching consequences U/A-48(6).

Meanwhile, Afghanistan, the Maldives and Sri Lankan constitution firmly believe that with a view to assimilate the popular voice referendum to be held for every Bill or provisions on any Bill which the cabinet or House has certified. Nevertheless, the constitution of Nepal, India and Bangladesh finds impractical to hold referendum on every Bill floored in parliament.

However, in the wake of unabated Madhesh unrest, “It was feasible for the Nepal to incorporate the provision of referendum on those issues which are more likely to be conflicting,” says Prashant Chauhan, Faculty of Constitutional Law in Uttarakhand Techinical University (UTU), Dehradun. He further says that as Nepal is not having a dense population like its’ southern neighbour, “It would have steamrolling had the parliament envisaged the provision of referendum while certifying any Bill and would have certainly given an opportunity to collect the popular voice, and eventually the Nepal crisis continued from the last 4 months would also have put at rest.”

Although, confident of underscoring the need of democratic form of government, these countries differ in allocation of the executive power. Of eight, only three countries—Afghanistan, Maldives and Sri Lanka–have vested the executive power on President while the remaining allows central Cabinet headed by the Prime Minister to perform the executive functions. Likewise, the constitution of Bangladesh, Maldives and Sri Lanka establishes a unicameral parliamentary form of democracy while Afghanistan, Bhutan, India, Nepal and Pakistan adopt bicameral form of parliamentary structure.

The constitution of SAARC countries envisages that at least in policy spectrum there would be no gender stereotyping, meaning women are equal to men. However going by the representation of women in parliament, the gender equality claim proves merely like a big tree with hollow trunk.

Though the newly enforced constitution of Nepal was briefly criticized by powerful member nation of SAARC India, the former’s constitution ensures scores of positive elements for the mainstreaming of women in all spheres which proves that it carries more progressive provisions than several other constitution, including South Asian countries’.

In across south Asian countries, Nepal becomes the foremost country to set aside 33% parliamentary seats reserved for women through legislation as envisaged under Article (U/A) 84(8).

“At a time when the electorates showing lack of faith on women leadership and lack of faith on their own possibilities driven by force of stereotyping, the need of hour is to reserve the seats for women to propel them into action,” argues Devika Singh Rana, Associate Professor of Criminal Law in UTU, Dehradun while appreciating the framers of Nepali constitution.

However, India is also discussing to adopt the similar arrangement since 1996. Meanwhile, Islamic Republic of Pakistan though claims that maximum measures would be taken to uplift the women fails to well verse with their own constitutional claims as they ensure 17 % and 15% parliamentary seats for women in Lower House and Senate respectively. Similarly, another Islamic nation Bangladesh ensures 14 % of seats for women in parliamentary sphere.

Further, Afghanistan becomes next country after Nepal in ensuring fair representation of women in Parliament so as not to let their dreams of half national population turn sour. The Afghani constitution U/A-84 ensures that state shall provide 27% of parliamentary berths for women in Lower House while 50% seats in House of Elders.

The Bhutan, the smallest country in the region, believes that allocating quota system is undemocratic as voters are not given the choice since it provides preference-based politics. The constitution U/A-11 simply talks about a 25-member National Council while A-12 says there shall be a 55-member National Assembly, leaving no scope of quota for any section of society.

The Islamic Republic of Maldives and Sri Lanka stands on similar footing with Bhutan in ensuring no any form of quota system. These countries believe that women are independent and would not like quotas as the constitution itself offers no discrimination on the basis of gender.

Even as the Nepali constitution becomes the first country to ensure rights of women as FR U/A-38 and a broad-based living document for women, “the women activists criticizing the latest provision on citizenship argue that the women have not been seen as the equal citizen. Despite being the most progressive document in terms of guaranteeing rights and equality to women, Nepal’s constitution still fails to knock down all the boundaries between the male and female by restricting a Nepali woman from transferring her identity to her young ones. This bothers them the most,” opines Nirjana Sharma, a Journalist associated with ‘Republica’ daily in Kathmandu.

She further says, “If a brother marries a foreigner, the children born from them would get citizenship without any hassle while the same treatment is not there with a sister marrying a foreigner. This, according to woman rights activists, is huge gender bigotry.”

While talking about citizenship provisions, Afghani constitution offers a very narrow interpretation. It simply says that no Afghani citizen shall be deprived of citizenship. It denies the legitimacy of naturalized citizenship provisions that the other nations having.  The citizenship shall be awarded by modes of descent, naturalization and birth says the constitution of Bangladesh, India and Pakistan. However, Bhutan, Nepal and Sri Lanka envisage that the basis would be descent and naturalization. Taking a strong reservation over awarding citizenship to non-Muslims, Maldives constitution provides that the state may restrict a non-Muslim to become a part of the country. However, it ensures that citizenship will be given on the basis of descent and naturalization.

The Nepali constitution U/A-289 bars a naturalized citizen to hold any form of judicial, constitutional and legislative posts while the same provision has not been enshrined in other SAARC nations. However, Pakistan & Afghanistan bars a non-Muslim to hold the office of President whereas Maldivian constitution allows only Sunni Muslim to hold the judicial, constitutional and legislative posts. Similarly, U/A-31(1) (a), the Bhutan constitution bars naturalized citizenship holders to hold any form of constitutional office.

 

Further, though the Directive Principle of State Policy (DPSP) sets out the aims and objectives taken by the legislation to achieve with a high sense of moral duty, the two south Asian nations—Afghanistan and Maldives—have stood indifferent in incorporating the said provisions.

The COI and CON provisions for the objective of DPSP as “welfare state” and “public welfare”, respectively while Bangladesh seems to be pledged to achieve the goal of ‘socialism’ through their state policy. Moreover, Sri Lanka envisages of ‘just & fair society’ as goal of their state policy. While presenting differently, Pakistan envisages ‘promotion of Islamic way of life’ as the main goal of state through its DPSP.

In an apparent bid to ensure a broad-based state policy, Bhutan envisages “Gross National Happiness (GNH)” to flourish the Buddhist spiritual values instead of western material development gauged by Gross Domestic Product (GDP). While endorsing the novel policy, the His Majesty King had argued that “GNH is more important than GDP.”

“The Bhutanese constitution is all-set to spearhead a new chapter through its DPSP. The country would embark with a new beginning before the world-map provided the state succeeds to achieve the dynamic design of state policy,” further says professor Rana.

On the contrary, the judiciary which till now has been accepted on all hands as the strongest pillar of democracy is all-set to be snowed under unprecedented problems in South Asian region with the introduction of Judicial appointment Commission, where Law Minister has been given a substantive power, to appoint the judges of higher judiciary. “However, the collegiums of Supreme Court (SC) judges play a role in appointment of judges of higher judiciary in India, leaving no room for political intervention like other SAARC nations. The provision to invite political intervention even in judiciary would certainly hamper its’ independency,” further says Rana.

Furthermore, the Maldives constitution U/A-142 maintains the court shall apply Islamic Shariah jurisprudence while administering justice whereas the Afghan constitution favors Shia jurisprudence for the same, U/A-131. As per Shariah and Shia jurisprudence, the courts have to administer justice in the line with deterrent (i.e. eye for an eye) and retributive (i.e. let the punishment fit the crime) approach.

Noted, the Maldivian parliament through 2014 amendment ensured that children as young as seven to be sentenced to death for certain intentional heinous nature of crimes. Of 94 countries in the globe, Bhutan, Nepal and Srilanka have abolished death penalties while remaining five SAARC nations remain reluctant in doing so.

While people from different walks of life accompanying Indian establishment shown dissatisfaction over making Nepal a secular state, one can witness only India and Nepal officially declared as secular country on constitutional map of South Asia.

Noted journalist Nirjana Sharma says that CA members believed that “Secularism and Federalism were the issues that this constitution would not step back from.” When asked whether the parliament ignored the popular voice, she says, “I have seen a mass standing for Hinduism during the CA’s feedback collection right after the first draft of constitution was brought. The sentiment to see Nepal as Hindu nation is also reflected on popular vote received by RPP-N, led by Kamal Thapa.”

According to 2011 census report, Nepal is resident of more than 81% Hindus.

“But still, many people whom I interviewed at that time mentioned that they would accept the secularism if it was to recognize the identity of the religious minority in the country. Many would say that, they would be more than happy if Hinduism was reinstated. But they were also flexible to accept the secularism saying that they were pretty sure the CA would not change that provision,” adds she.

However, “If you ask my personal belief, I follow Hinduism but have no problem in having my country secular. In fact, it’s good that my constitution does not favor to the religious majority, but recognizes least followed religion too.”

Nevertheless, Sharma suggests observing the debated issue from a different angle as well. “As I observe the things happening around me, I also give a benefit of doubt on how the Constituent Assembly must have been under pressure to adopt secularism. But let’s see at the broader perspective that triggering the religious riot is something impossible till date in Nepal. Muslim friends say they feel safe in Nepal as none of the Nepalis accuse them of being terrorists at a time when hatred for Muslim is ever growing in western countries. I hope the secularism will only strengthen the cross religion bonding among Nepalis given the unique nature of Nepalis to take things easily and prioritize the national interest.”

Further, “There’s one thing what one of participant told me in Myagdi during feedback collection–“We would feel blessed to re-establish Hinduism but we won’t be killing each other even if secularism remains.”

Moreover, the fundamental rights (FR) provision is often regarded as backbone of the legislation; so it’s of expedient to discuss about it briefly. “The ultimate goal of constitutions is to ensure the rights to last man standing and in true sense the legislation should serve humanity,” says professor Chauhan while showing satisfaction over the fundamental rights section of SAARC countries. More or less, the FR provisions find consonance with each other’s.

When asked whether the provision of right to marry as a FR embodied in Maldivian constitution U/A-34 is derogatory, another faculty of Constitutional Law Dr JN Singh says that the same rights has been ensured the convention of UDHR-1948. “The right is not repugnant in nature. However, it was held by Allahabad HC in a case that right to marry is FR within the meaning of right to life & liberty enshrined U/A-21.”

The SAARC was founded in December 1985 with the purpose of collective economical, technical, social, cultural development of member nations. However, the last word—“Cooperation” is lacking among member nation and due to which it’s argued that SAARC is dead, long live SAARC. The need of hour is to jointly stand for the cause, expressing a strong pledge to uproot the deep-seated licensed impunity. And, achieve the goals of legislation with mutual cooperation. When there will be lack of “cooperation” among member nations, the essence of loose-alliance will be distracted and abbreviation will ultimately loose the last word “C”. So, let’s jointly pledge to realize the dreams of SAARC, though we are blessed with different constitutional provisions and different political set up.

 

 

Nepali Constitution’s progressive provisions: 

    • Rights of the women as FR, one-third women representation in parliament while other South Asian nations yet to ensure representation of women in similar vein
    • Any descent citizen can hold legislative, judicial and constitutional posts unlike Afghanistan, Maldives, Pakistan, where a Muslim citizen can only acquire vital posts
    • No death penalty unlike, Afghanistan, Bangladesh, India, Maldives & Pakistan
    • Same person disqualified to hold the President office more than twice unlike India
    • Provincial Assembly Unicameral while national assembly bicameral
    • DPSP broad-based when compared to Pakistan which provisions to promote Islamic way of life, ignoring the scope for other religious minorities
    • Like Pakistan & Bhutan, Nepal envisaged Right to information as FR whereas the remaining SAARC nations take it as legal right
    • Equal right for both spouses in property and family affairs as FR while in India ‘Karta’, senior most male member, as head of family and remaining nations also reluctant to ensure women with full-fledged rights on family & property affairs
    • Right to representation of women in the line with proportional representation as FR, while so is not the case with other
    • Right to lineage from initial stage while in India guaranteed through 2005 Amdt and sadly enough Islamic countries are yet to ensure
    • Equal Right to women on estate, intestate like India while others not having similar story
    • A-31 (2) (b) of Pakistani constitution provides compulsory teaching of Holy Quran to all citizen as DPSP and Maldives constitution U/A-17 R/W A-9 (d) provides discrimination can be made on religious grounds while Afghan law bars non-Muslim to hold vital offices ; the same derogatory case is not with Nepal
    • Afghan, Maldives, & Pakistan constitution suggests the courts to pass the verdicts in the line with Shariah and Islamic laws. However, Nepal, India, & Bhutan stands on doctrine of natural justice
    • SC, HC can entertain writs on violation of FR, and among other legal rights while the other South Asian countries empowered the SC to entertain the writs only on violation of FR
    • Right of compensation for victim of crime as FR through legislation
    • Right to free legal aid as FR while other countries take it as legal right
    • Distribution of revenue in the line with equity law, while others make centre dominant
    • All the mother tongues shall be national language in Nepal, A-6 so is not the case with other as they prioritize only one or two languages

 

 

Unique Constitutional provisions in SAARC 

 

Maldives:

 

    1. The freedom of rights as per Sharia law, A-19)
    2. The freedom of speech strictly in the line with Islamic tenet, A-27
    3. No immunity from civil & criminal suits for President, A-127
    4. Attorney general shall a part of cabinet, A-129 (a)
    5. Judges appointed for a fixed term of five years, A-129(a)
    6. The SC judges should have been educated in Shariah law and Sunni law, A-149
    7. Sunni Muslim only qualified to hold any judicial, legislative and constitutional office
    8. Right to marry as FR, A-34
    9. The children as young as seven to be sentenced to death for certain intentional crimes, inserted through 2014 amendment.

 

Afghanistan:

    1. President to be head of entire three-tier of government, i.e. legislature, executive and judiciary, A-60. The separation of power neither in letter nor spirit
    2. Presidents shall have two Vice Presidents, A-60
    3. Only Muslim citizen eligible to hold President office

Bhutan:

    1. Gross National Happiness (GNH) as policy of DPSP, A-9 (2)
    2. A person shall be disqualified as candidate or a member holding an elective office if the person marries to foreign national, A-23(4)
    3. The minimum age for filling nomination from constituency will be 25 while the maximum age for the same stands at 65, A-23(2)(b)
    4. Illiterates and the person having only school education is barred to contest the election, A-23(2)(b), R/W Election Law of Bhutan
    5. The primary round of election shall be held to select the two parties for general election and the two political parties obtaining the first and second highest number of votes will the two parties for the purpose of contesting the general election. Further, party which has majority of seats in general election will be declared as ruling party and the other as opposition party, A-15.

 

India:

 

    1. The one-third women representation only in local level, A-243

Nepal:

    1. The population and geography both shall be the basis of constituency delineation, A-84 (1) (a)
    2. One-third women representation for women in parliament, A-84(8)
    3. Rights of women as FR, A-38
    4. Rights of Dalit as FR, A-40
    5. Rights of Senior Citizens as FR, A-41
    6. Both spouses shall have equal rights in property & family affairs, A-38(6).
    7. All languages given by mother in Nepal shall be national language, A-6

 

Pakistan:

    1. State to prevent consumption of liquors, A-37(h)
    2. State shall endeavor to preserve & strengthen fraternal relation among Muslim countries based on Islamic unity, A-40
    3. Only Muslim shall be qualified to hold President office, A-41(2)
    4. State to promote Islamic way of life as DPSP, A-31(1)
    5. No provision of Vice President

Srilanka:

    1. If the SC is of opinion that referendum should be held on particular provisions or Act, the same will be carried, A-80(2)
    2. The secretaries of PM and every minister shall be appointed by President, A-51 R/W A-52
    3. In addition to the five kinds of writs that other nations having, the SC, Court of Appeal & HC is empowered to entertain precendo writs as well
    4. The hierarchy of higher judiciary in ascending order is: HC, Court of Appeal & SC

Bangladesh:

    1. Non-party Care Taker Government shall be formed during the period of dissolution of parliament and the duty of such government will be to conduct the general election and such body shall be apolitical in nature, A-58
    2. Absolute trust & faith in the Almighty Allah shall be the basis of all the actions taken by state in the name of DPSP, A-8(1A).Constitutional Overview at a glance:
      1. Afghanistan constitution contains a total of 162 Articles where the President acts as executive head of state. While the state’s religion is Islam, its parliament is Bicameral in nature. Official language: Pashto & Dari; Citizenship: No Afghani deprived by citizenship; Constituency delineation on the basis of population; Women Representation: Lower House- 27%, House of Elders- 50%; Court of Record- SC; DPSP- Not mentioned; Bill becomes law when Referendum is held on national issues; Tenure of House: Lower House- 5 yrs, Upper House: 3,4,5 Yrs; Judicial appointment by President on the recommendation of House; Death Penalty: Yes
      2. Bangladesh constitution contains a total of 153 Articles where the Prime Minister holds the executive power. While the state’s religion is Islam, its’ parliament is Unicameral, having westminister system of governance. The official language: Bangla; Citizenship: By birth, descent & naturalization; Constituency delineation on the basis of Population, Women representation: Lower House- 14 %; DPSP: Socialism; Court of Record: SC; Bill becomes law when passed by House& certified by President; Judicial appointment by Judicial Commission where Law Minister holds substantive power; Tenure of House: 5 yrs; Death Penalty: Yes
      3. Bhutan constitution contains as many as 35 Articles where the Prime Minister holds the executive power and King is there as ceremonial head of state. It’s state’s religion is Buddhism while parliament is Bicameral. The official language is Dzongkha; Citizenship by descent, & naturalization; Constituency delineation on the basis of Population; Women representation: No Quota; DPSP: Gross National Happiness; Court of Record: SC; Bill becomes law strictly in the line with Buddhism when passed by Houses; Judicial appointment by Judicial commission where Law Minister is with teeth; tenure of House: Lower House- 5 yrs; Upper House- 4 yrs; Death penalty- No
      4. Indian constitution contains 395 Articles where the constitution allows Prime Minister to work as executive head. Its’ a Secular state having Bicameral parliamentary structure. The official language is Hindi & English; Citizenship by: birth, descent & naturalization, Constituency delineation on the basis of Population; Women representation: One-third in Local level only and for Parliament the Bill pending since 1996; DPSP: Social welfare; Court of Record: HC/SC; Bill becomes law when passed by both Houses & certified by President; Judicial appointment by Collegiums of judge where no intervention of politics; Tenure of Houses: Lower House- 5 yrs, Upper House: 6 yrs; Death Penalty: yes
      5. Maldivian constitution contains 301 Articles where President acts as executive head. Its state religion is Islam whereas parliament is Unicameral in nature. The official language is Dhivehi; Citizenship on the basis of Descent, & naturalization; a non-Muslim may not be given opportunity to become citizen by naturalization; Constituency delineation on the basis of Population; Women representation: No Quota; DPSP: Not mentioned; Court of Record: SC, Bill becomes law when passed by Lower House and validated by referendum; Judicial appointment by President on recommendation of House; Tenure of House: Unicameral- 5 yrs; Death penalty-Yes
      6. The Nepali constitution contains 308 Articles where the Prime Minister holds executive power. It’s a Secular state having a Bicameral parliamentary structure. The official language is Nepali; Citizenship on the basis of Descent & naturalization; Constituency delineation on the basis of Population & geography; Women representation: One-third in all spheres, including parliament; DPSP: Public Welfare; Court of Record: SC, Bill becomes law when passed by both Houses & certified by President; Judicial appointment by Judicial commission where Law minister is given substantive power; Tenure of House: Lower House- 5 yrs, Upper House- 6 yrs; Death Penalty: No
      7. Pakistani constitution contains as many as 280 Articles where the Prime Minister performs executive function. It’s state religion is Islam while parliamentary structure is Bicameral. The official language is Urdu, Citizenship on the basis of by birth, descent, & naturalization; Constituency delineation on the basis of Population; Women representation: Lower House: 17% Senate: 15%; DPSP: Promote Islamic Way of Life; Court of Record: HC/SC; Bill becomes law when passed by both Houses & certified by president and referendum can be held if needed; Judicial appointment by judicial commission where Law minister is given a substantive power; Tenure of House same like India; Death Penalty: yes
      8. Sri Lankan constitution contains a total of 172 Articles where the President acts as executive head of the state. Its’ state’s religion is Buddhism while parliamentary structure is Unicameral in nature. The official language is Sinhla & Tamil; Citizenship on the basis of Registration & descent; Constituency delineation on the basis of Population; Women representation: No Quota; DPSP: Fair & Just Society; Court of Record: Court of Appeal/SC; Bill becomes law when passed by Cabinet and validated by referendum; Judicial appointment by Judicial commission where Cabinet holds control, House’s tenure reduced to 5 yrs by 2015 amendment; Death penalty: No

       

      Qualification for President:

      1. The Afghanistan constitution provisions that only Muslim citizen can be eligible to hold the President office who has reached the age of 40. However, the same person can hold the office maximum for Twice.
      2. Bangladesh constitution provisions that any citizen can be eligible for Presidential election provided he/she has attained the age of 35. However, the same person can hold the office maximum for Twice.
      3. Bhutan: King is there in place of President
      4. Indian constitution provisions that any citizen can be eligible for Presidential election provided he/she has reached the age of 35 and the same person can be elected for any number of times.
      5. Maldivian constitution allows only Sunni Muslim of 35, to contest the Presidential election. However, the same person cannot be elected for more than two terms.
      6. Nepal constitution provisions that any citizen by descent can be eligible for Presidential election after attaining the age of 45. However, the same person cannot be elected for more than two terms.
      7. Pakistan constitution provisions that any person, who has attained the age of 45 and a Muslim, is eligible for Presidential election. However, the same person cannot be elected for more than two terms.
      8. Sri Lankan constitution provisions that any citizen can contest the presidential election who has reached the age of 35 and the same person cannot be elected for more than two terms.

       

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