ARTICLES PUBLISHED IN NEPAL MONITOR.COM

Debating Constituent Assembly

The question now is how to form a constituent assembly that is fully representative of the social mosaic that is Nepal, writes DWARIKA N DHUNGEL. A serious public debate on this topic must begin immediately, he argues.

More than five decades ago, King Tribhuvan declared in a message to the nation: ‘’Our wish and decision is that the government of our people will henceforth be carried out according to a democratic constitution prepared by the constituent assembly elected by them…’’

We may doubt today that even the King might have a full understanding of the implications of his announcement. But that was in 1951, and it was from Tribhuvan that many in Nepal heard about the notion of constituent assembly for the first time.

Tribhuvan had delivered that famous address to the nation after the fall of the century-old Rana regime. When the King returned to Kathmandu following the New Delhi accord among the Ranas, the Nepali Congress, and Tribhuvan, he helped write promulgate an interim constitution, which paved a way for the constitution assembly.
But Tribhuvan’s promise never materialized. None of the subsequent kings, neither Mahendra nor Birendra, gave the opportunity to the people to directly select their representatives to frame the constitution. Rather, they avoided the election to the constituent assembly and promulgated constitutions written and drafted by the committees formed by these kings, not via popular votes. Therefore, three of the four constitutions, especially that of the Interim Government of Nepal 1951, Constitution of the Kingdom of Nepal 1959 and the Constitution of the Kingdom of Nepal 1990 were nothing but the compromised political documents between the political parties and monarch.

Since the beginning of the Maoists insurgency in 1996, especially after the success of the recent April Revolution leading to the restoration of the dissolved House of Representatives (HoR), the constituent assembly has re-emerged as a major political agenda. The HoR, through its May 18 resolution formally acknowledged that the country would write a new constitution formulated through a constituent assembly.

To recapitulate, one of the paragraphs of preamble to the HoR declaration reads: With determination to fulfilling the peoples' mandate given by the Nepali people as per the roadmap of the seven political parties and the 12-point understanding between the seven political parties and the CPN-Maoist in the peaceful joint people's movement to restore a inclusive state by restructuring the state by formulating new constitution and to restore sustainable peace through democracy, and constituent assembly.

Thus the recent developments in the country, i.e. the resolutions of the HoR and the recent signing of the eight-point agreement between the ruling seven party alliance and the Communist Party of Nepal (Maoists) have made constituent assembly inevitable for Nepal. Today, the Nepali society in general accepts the need for a new constitution drafted and written by the constituent assembly as a political necessity.

The question now is how to form a constituent assembly that is fully representative of the social mosaic that is Nepal.

Sorting Out ProceduresAn ideal constituent assembly is one that represents all sections of society—social and economic classes, ethnicities, geographic regions, etc. The present constituencies, drawn on the basis of population of districts, are not inclusive in terms of minorities as well as regional and ethnic identities or economic classes.

Thus, we must ask: Should the present constituencies continue to serve as the basis for representation of the people or should we draw new territorial basis? Similarly, how to represent the underdeveloped regions of the country, such as the Karnali Zone, which, after centuries of neglect from the Kathmandu, is seeking the right to self-determination?

The other critical issue is inclusiveness. In what manner should the different sections of the society (such as gender, ethnic groups and dalits, and religions) be included in the constituent assembly?
For example, how to represent the Madhesis, the dwellers in the Terai, the southern plains? Sure, we may contest the idea of Madhesis. For some it is merely a citizen living in the southern plains—be it Bahun, Chhetris/Thakuris/Ranas and Newars. For others, it is an exclusive category— people who own large swaths of land and who are known as jamindars (landowners). Yet others may see them as migrants and settlers strictly from India. Many of these people are in a condition of statelessness and lack citizenship certificates.
The exact number of such people could be a subject of debate as some claim it runs into 4 million. The Nepal Sadbhavna Party (NSP), one of the Seven Parties Alliance (SPA) and the part of the present government has raised this issue repeatedly. Now another body, Madesh Mukti Morchha (Madesh Liberation Front) has emerged to take up the cause of this area. The 18th May resolution of the House of Representatives (HoR) did take note of this issue. But the question remains how it will be resolved.

There are several views on the issue of representation in the constituent assembly. One school of thought is that political parties should be allowed to represent both the territories and different sections of the society on the basis of a proportional system. For this purpose, it is suggested, the parties should decide in advance how much percentage they would allocate for the territorial representation and for the different sections of the society. In addition, they should prepare a list of those who would be representing territory and different sections of the society. Based on the total votes obtained, the parties field their candidates for both types of representation on the basis of priority given in the list.

There is yet another school of thought that wants to represent the different sections of the society on the basis of collegiate representation system and also the representation of the territory. This means that from the total number of seats in the constituent assembly, certain percentage be allocated for the different sections of the society. And the voters of the respective groups should select representatives of each section. Whereas, the voters of the specified territory would send their representatives on the basis adult franchise.
In the case of women, both constituencies may be opted. Some gender activists have said they would like to caste their votes for both territorial and sectional constituencies. Similarly, the people of Karnali zone (according to those who are making the cause of this zone) would like to have a few seats reserved in the constituent assembly for their area and they would like to decide whom they would like to send as their representatives.
In order to address these issues, there is a need for a nationwide debate. Some sort of formula has to be worked out based on such debates.

So far the political parties that are now in power have not initiated any formal debate on the topic. They have neither begun a serious dialogue with the different sections of the society, civil society and research and academic institutions nor do they seem to have formally (based on my knowledge) asked these bodies to come up with concrete suggestions on these matters.

I have personally talked about this issue to some knowledgeable persons. None of the insiders thinks that the parties represented in the government or the Maoists have the blue prints on the composition of the proposed constituent assembly.

Eventually, there is every possibility that the expatriates would come and make the recommendation to the government as to how a constituent assembly be constituted without much involvement of the local knowledge and expertise. That may help in the short term, but for democracy to truly flourish, we must find our own answers to our own problems, through open debates and involvement.

Another is the issue of constitution writing process. This has to be clearly spelt out by the concerned actors. What are the procedures the constituent assembly would adopt in writing a new constitution? Who will draft the constitution? Would a drafting committee be formed among the constituent assembly members? Or a committee of experts is formed to write the draft? Similarly, the other issue to be sorted out is: Who will propose and who will approve the final version? In these regards, we need to study the models adopted by the different countries, such as United States of America, India, South Africa etc. and develop our own model suitable for the country, based on its geography and socio-economic mosaic.

It would be desirable on the part of the SPA and the CPN Maoists to solicit ideas from experts in the academia and other areas. They should make a request to the experts to look into all the available models from the perspective of their strengths and weakness and make appropriate recommendations. Also they must take other civil society actors into confidence and urge these people to come up with different alternatives. Whatever model is adopted, the assembly could also perform the functions of an interim parliament.

A Bad Precedence
The procedural issues have already raised serious questions as to the motives and methods of the Seven Party Alliance and the government. The obvious question is: Does the restored parliament have the powers to make declarations even before the constituent assembly elections? The April revolution concluded with a clear understanding that the country would move towards sustainable peace on the basis of the road map of the SPA and their 12- point understanding with the CPN Maoists. One of the elements of the roadmaps and understandings was to go to the constituent assembly and draft a new constitution.

But we all know what happened. Another bad precedence has been set up. The current government as well as the restored HoR, in the name of being the supreme body, pre-empted the power of the constituent assembly, by making the declaration on May 18. The resolutions have already converted the monarchy into a ceremonial monarch. The country has already been declared as a secular state. National political leaders seem to think what they say is what matters in Nepal. For instance, Prime Minister Girija Prasad Koirala suggested in his press-meet on June 14, 2006 in his hometown Biratnagar that the country would continue to have the ceremonial monarch. That may be his personal view. But decisions on such fundamentals must be left to the people to decide. In other words, the SPA and Maoists must have allowed the constituent assembly to decide the future shape of the country's political structure, including the nature of the state-- republican or monarchical, unitary or federal, religious or secular, etc.

Since several monumental changes have already been announced and the government and the HoR are doing homework to operationalize and institutionalize the resolutions and pronouncements, one could ask whether like in South Africa, these declarations will serve as basic principles on the basis of which the constitution assembly would prepare a new constitution for the country.

If so, then the government should have discussed these matters with all who participated in the recently concluded revolution, including the Maoists. And only with their consent, the HoR should have adopted the resolutions, which, then, could have served as guiding principles for drafting the new constitution.
As a result of all these developments, we can say that there are more confusions than clarity with regard to the composition and decision-making structure of the constituent assembly. Without resolving these issues, the country will not have a smooth sailing in the process of constituent assembly elections and the framing of the new constitution. For that to happen, a serious public debate on these topics must begin immediately.

Dwarika N. Dhungel, Ph.D., is the Executive Director of the Institute for Integrated Development Studies (IIDS), a Kathamndu-based think tank institute. He can be reached at pdhungel@mos.com.np
Published in Nepal Monitor on June 22, 2006

Beyond Monarchical Republic
To end the present environment of political uncertainty, caused by de-facto and de-jure rulers, and a monarchical republican system, the peace deal between the government and the CPN/Maoists should take place and constituent assembly process must start immediately, writes DWARIKA N. DHUNGEL.

Nepal’s politics has taken such a turn today that is difficult to distinguish what type of government we have in power in the country. What is going to happen next, now that the seven political parties’ alliance (SPA), with their leader G.P. Koirala as Prime Minister, enjoys the power of the dejure ruler, whereas the Maoists have emerged as the de-facto rulers, and monarchy is in a state of almost non-existence?
The restored House of Representatives has partially annulled the 1990 Constitution. The HoR has done that without amending the Constitution or replacing it through the promulgation of an Interim Government Act of Nepal 2006.

History will judge whether the HoR’s declaration was legal or not. But the fact remains that the country is now being ruled by an all powerful government on the basis of the two fundamental laws, a partially dead constitution of 1990 and the recently made (May 17) proclamation of the House of Representatives (HoR).

The result is that the country currently has a monarchical republican system of government with the ultimate power being exercised by the government headed by Prime Minister. We are also witnessing the open movement of CPN Maoists. Their Janasena (People's army) have come out in the open, with their guns. We see them in mass rallies, including the recently held (June 1 mass rally at Kathmandu), providing security to their leaders. Their indirect participation in running the administration of the country is also apparent. Furthermore, they have expressed their willingness to sit down with the government for a peace talk, and the latest talk concluded a week ago. If the present political course remains steady, there will soon be a new constitution drafted by a constituent assembly elected by the people.

Political actors have begun to assert their legitimacy, and more importantly, power, as massive structural changes in the Nepali society seem all the more promising. As mentioned above, the SPA and the Maoists are running the country in their own ways. The difference between the two is that one of them is back inside Singha Durbar—the seat of government in the country, and the other has come out of the jungles to openly assemble at Tundikhel, the open place, where rallies are held at the heart of Kathmandu. But the Maoists are still not the part of the government, formally.

Another difference is that the SPA, who led the 19 days movements with the support of the CPN Maoists against the rule of King Gyanendra, is represented in the restored in the HoR. But the CPN Maoists are still not the part of the HOR. Nonetheless, the government is not in a position to manage the affairs of the state without consulting the Maoists.

This was an unthinkable political equation only a few months ago.
Clearly, the country, at present, is in a state of transition and fluidity. The situation is so uncertain that anything can happen. Even a small mistake or a misstep of the government of the SPA alliance or the CPN Maoists can wreak havoc in the country. The turn of events could be much more serious (than in the past) in terms of the loss of lives and property.

Internal feuds are still a problem. Indeed, on the basis of behaviors within the SPA, especially with specific reference to distribution of positions, i.e. demand for ministerial positions by the alliance members of the SPA, the difference of opinion among them for the restoration of the local bodies and the opinion difference observed during the election to the Speaker of the HoR, one could say that some cracks have already cropped up in their relationships. In deed, the political parties have not learned from their past mistakes.

Some differences seem to have already cropped up in the relations between the SPA and the CPN Maoists, too. They have voiced differing opinions on the dissolution of the HoR, the convening of a national conference with the participation of the different stakeholders, the scrapping of the present partially dead constitution of 1990, the drafting of an interim government act of Nepal, and the formation of an interim government with the participation of the CPN Maoists. It would be interesting to see how much the SPA-led government would be able to resist the demand of the CPN Maoists, without whose massive support, the 19-day movement could not have been successful.

The public may give them some time so that they could work together to solve the ongoing conflict and establish sustainable peace in the country. The government and the political parties as well as the Maoists would succeed in these endeavors only when they realize that they need each other and that they are not going to get another chance if they miss the present opportunity. The success of the 19-day April revolution (also called Rhododendron revolution, for the revolutionary red color of the national flower) and the May 17 proclamation of the HoR has led to the elimination of the feudal past. In fact, the movement is symbolic of the culmination of the all efforts made so far to get rid of the autocratic regimes (Rana autocracy and Shah Autocracy) and the feudal structure of the country. This is a historic opportunity for the political leadership. So, the SPA and CPN Maoists should find a common ground to work through their differences.

The recent signing of the code of conducts between the government and the Maoists, prescribing norms of behavior among them and towards the people, is one of the steps toward finding a common ground. For all practical purpose, people had the difficulty to move within and across districts due to the existence of two regimes. The government-controlled areas were limited to district headquarters. The CPN Maoists controlled mainly the rural and far-flung areas. The code of conduct would help to ease movement of the essential services, such foods, medicines, construction materials within districts and rural areas without obstructions.

There is a section of the society which feels that the government and the CPN Maoists should fist of all signed the ceasefire agreement and then only signed the code of conducts. However, their willingness to have such a provision in the document is a welcome sign.

What is now required is that they honor their commitments. But we will have to wait till the formation of the monitoring committee to find out whether the government has been successful in implementing the code of conducts, and whether the lives of the people living in the far flung areas has improved as well as the unhindered flow of essential goods ensured.

Another welcome step is the willingness shown by both the government and the Maoists to involve the United Nations in monitoring the peace process. Interestingly, to involve UN, as the Kathmandu Post newspaper reported recently (May 30, 2006) the government had to get the green signal of New Delhi along with the approval of the CPN Maoists.

The important challenge before the government is to successfully lead the country towards the formation of the constituent assembly for drafting a new constitution and to make this body inclusive. It has to be inclusive in terms of the representation of the different sections of the society and regions. In addition, there is a need to delineate its working procedure and the adoption process of the new constitution. These should be the subjects of national debate, along with the attention of the government to start a serious dialogue with CPN Maoists.
Drafting a good and lasting constitution requires forethought and foresight. It may be recalled that the 1990 constitution, based on the principles of multiparty parliamentary system of government with a constitutional monarch, was widely regarded as one of the world’s best democratic constitutions. But over the time, it became clear that it failed to reflect the socio-cultural mosaic of the country as well as its geographical regions of the country. Ultimately, even its framers and proponents began to think it was far from perfect. Needless to say, the 1990 constitution today is almost a dead document. The affairs of the country are partly managed only by some of its provisions.

Professionals have already begun discussions on the provisions needed for an inclusive constituent assembly, one that satisfies the demands of the different sections of the society and regions of the country. So far, the government has not started any discussion with professionals on these matters. Likewise, the SPA is yet to come up with a position paper on these subjects.

The future of the present monarchy has to be decided by the people during the election for the constituent assembly. The CPN Maoists remain adamant on a People's Republic. But for the time being, they insist they agree on a Democratic Republic. The question now is, how should, and how will the CPN Maoists respond should the people, via the constituent assembly elections, choose to retain monarchy? History is replete with examples that revolutionary elements have rarely embraced the outcome of such elections.
Similarly, the SPA, through parliamentary declaration, has already established a Monarchial republican system (or republican system with a powerless monarchy). So, in this context, the challenge before the current government, as it leads the country, hopefully, to the point of election to the constituent assembly with support from the Maoists, is to ensure to the people that they will have the opportunity to express their views on Monarchy without any fear and coercion.

Another major issue to be addressed is citizenship. This remains a thorny issue in the country, especially for many Terai Basis, people living in the Terai area (the inhabitants of the southern plains). Many of these people have a strong feeling that successive governments have ignored this major national issue: millions of people living in this area for ages do not have citizenship certificates. As a consequence, they are deprived of many benefits that come with citizenship, including the exercise of political rights. This issue has been raised times and again, with no results so far. Therefore, the representation of the Terai population in the proposed constituent assembly would be a critical issue. The government needs to address this issue before the election to the constituent assembly. The government’s approach to this issue and its resolution will have profound implications to the national politics.
An environment of fear and intimidation does not guarantee a free and fair election process. Such an election process pre-supposes the management of guns of the warring factions. We will have to wait and see how far and in what manner the UN blue helmets, if they are really called upon, would be able to manage the guns of warring factions and provide a sense of security and fearlessness during the whole election process to the constituent assembly.

Many citizens in the country, especially in the Karnali regions in the mid-western hills, the far western development regions as well as members of the indigenous groups, other disadvantaged sections of the society and dalits, are yet to feel that they are part of the Nepali nation. They still remain marginalised. Hence the issue of inclusiveness is one of the concerns raised by the leaders during the recent movement and CPN Maoists. Their participation in the total constitution making process can't be overlooked.

Nepal is at a crossroad as never before, since the beginning of its modern history in the mid-18th century. The country’s well-being, peace and progress depends upon how the major actors, especially the SPA the CPN Maoists will behave in the national political scene in the days to come. And if they fail this time, they will not be pardoned by the people.

To conclude, for the above to happen, and for the end of the present environment of political uncertainty, caused by de-facto and de-jure rulers and a monarchical republican system, the peace talk process between the CPN Maoists and the government should continue, and they must sign an accord. They should also work with different stakeholders in the process of constituent assembly elections, with no further loss of time. Only a smooth transition can guarantee a stable and sustained peace process in the country.
Published in Nepal Monitor : June 4, 2006