Constituent assembly in Nepal: Representation and Decision Making Process
Dwarika N. Dhungel
The context
People of Nepal had for the first time heard the notion of the constituent assembly as a constitution drafting mechanism in 1951 when Late King Tribhuwan Bir Bikram Shah Dev, had delivered the address to the nation after the fall of century old Rana regime. But none of the three Kings including Tribhuwan, i.e. from Grand father King Tribhuwan to his grand son Birendra gave the opportunity to the people the right to select their representatives to frame the constitution. Rather they avoided the election to the constituent assembly and the two kings, Mahendra and Birendra gave the constitutions drafted by the committees formed by them in consultation with and consent of the political parties, especially in relation to the constitution of the kingdom of Nepal 1990.
Along with the beginning of the Maoists insurgency in 1996, constituent assembly once again emerged as a major political agenda and it is now being accepted by the Nepalese society at large and in particular the major two actors, the Nepali Congress and the Communist Party of Nepal: United Marxist and Leninist, who were involved and participated in the drafting of the partially alive 1990 constitution along with the members of seven party alliance that had raised and successfully launched the April 2006 Revolution against King Gyanendra's direct rule.
The success of the Revolution led to the restoration of dissolved House of Representatives (HoR), which through its May 18 resolution formally acknowledged that the country would, most likely unless un towards incidents happen, have a new constitution formulated through a constituent assembly for restoring sustainable peace. In one of its paragraphs of the declarations' preamble it is stated that
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
People of Nepal had for the first time heard the notion of the constituent assembly as a constitution drafting mechanism in 1951 when Late King Tribhuwan Bir Bikram Shah Dev, had delivered the address to the nation after the fall of century old Rana regime. But none of the three Kings including Tribhuwan, i.e. from Grand father King Tribhuwan to his grand son Birendra gave the opportunity to the people the right to select their representatives to frame the constitution. Rather they avoided the election to the constituent assembly and the two kings, Mahendra and Birendra gave the constitutions drafted by the committees formed by them in consultation with and consent of the political parties, especially in relation to the constitution of the kingdom of Nepal 1990.
Along with the beginning of the Maoists insurgency in 1996, constituent assembly once again emerged as a major political agenda and it is now being accepted by the Nepalese society at large and in particular the major two actors, the Nepali Congress and the Communist Party of Nepal: United Marxist and Leninist, who were involved and participated in the drafting of the partially alive 1990 constitution along with the members of seven party alliance that had raised and successfully launched the April 2006 Revolution against King Gyanendra's direct rule.
The success of the Revolution led to the restoration of dissolved House of Representatives (HoR), which through its May 18 resolution formally acknowledged that the country would, most likely unless un towards incidents happen, have a new constitution formulated through a constituent assembly for restoring sustainable peace. In one of its paragraphs of the declarations' preamble it is stated that
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
Representation of Different Regions and Sections
In the light of all theses, the country is now set to have a new constitution through a constituent assembly. And there is demand from all quarters that it should reflect the social mosaic of the country in terms of its composition. In other words, there is a demand for the representation of the all regions (geographical) and sections of the society in the constituent assembly. So the questions now required to address are: whether the present constituency could serve as the basis for representation of or new territorial basis is drawn?
Similarly, how and what manner the underdeveloped regions of the country, such as the Karnali Zone, which because of the century long neglect from the Singh durbar-- the seat of power is demanding the right to self determination, could be represented.
The other issue without whose satisfactory resolution the country might heavily bleed once again is the manner through which representation of the different sections of the society, gender, ethnic groups and dalits and religion would be made in the constituent assembly. In this regard there are however, several thoughts abut this matter. One school of thought is that political parties seeking election to this body should declare in their manifestos about how much percentage they would allocate for the territorial representation and how much for the different sections of the society. And they should be allowed to seek the election as a party and based on the percentage of votes received they would send the representatives to the assembly on the basis of what they have proposed in the election manifestos. However, those who do not subscribe this view would like to see the political parties making the list known before the election and based on the percentage of votes received they should select the candidates from the list published, i.e according to the listing order, on the basis of their agreed formula of proportional representation. There is another school of thought which want that the different sections of the society be represented on the basis of collegiate representation system. So there is a need to sort out this issue.
In order to address these issues, there is a need for a nation wide debate and based on such debates some sort of formula has to be worked out. The size and election to the constituent assembly would depend upon the resolution of these issues. So far the political parties that are now in power have neither began a serious dialogue with the different sections of the society, civil society and research and academic institutions nor seem to have formally (based on my knowledge) asked these bodies to come up with concrete suggestions on these matters.
When discussed with the knowledgeable persons whether the parties represented in the government or the Communist Party of Nepal Maoists has the blue prints on the composition of the proposed constituent assembly, the answer was ' I don't think that they have such blueprints'. 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.
Tarai Representation
Of the three geographical regions, Tarai has remained an important area for various reasons. One of them is for its Jamindaris (main source of income from land) of so-called aristocratic families or feudals, mainly those of Bahun, Chhetris/Thakuris/Ranas and Newars. Related is for being the pull factor for the migrants from within and outside the country to come to this area, clear the forest, settle and start farming in the cleared areas.
According to those who are championing the cause of this area, who call themselves Madeshis and the area as Madesh, a large number of such settlers, especially those of the Medhesi stock, other than those migrated from the hills are still in a condition of statelessness due to the lack of citizenship certificate. It may be recalled that during the planting and harvesting seasons of the crops thousands of workers from across the international borders came to Tarai as wage earners and most of them never returned to their native places.
The exact number of such people could be a subject of debate as some claim it runs into 4 million. But the fact remains that this is a problem requiring resolution and in absence of which within a family one would find citizens and non-citizens. Furthermore, those who are poor and have no asset of their own as this contributor itself, for example, has seen and observed in the district of Kapilvastu are being denied of benefits which citizens of the country could avail of. The Nepal Sadbhavna Party (NSP) one of the Seven Parties Alliance (SPA) and the part of the present government has raised this issue loudly. 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) has does take note of this issue. How this issue would be tackled by the present government and in what manner it would take the CPN Maoists into confidence with regard to this matter is not yet clear. But, unless Madeshi problem, especially that of the citizenship, is dwelt upon before the election to the constituent assembly another revolution may start from this area. Also the issue is so sensitive that needed to be properly and carefully handled.
Constitution Making Process
What procedure the constituent assembly would adopt in the whole process of constitution making is yet to be clearly spelt out by the concerned actors to its stakeholders. Whether it would constitute a drafting committee from among its members or constitute a drafting committee from among the experts and discuss what is proposed and approve for final adoption. In either case the assembly could perform the functions of the Interim parliament. Each of these alternatives has to be weighed from the points of view of merits and demerits. Since a number of persons from the academia and other fields have their own started thinking about these things, there was a need on the part of the major political actors, especially the SPA and government and the CPN Maoists should taken other actors into confidence and made a request to these people to come up with different alternatives including the merits and demerits of each of the alternatives suggested.
Conditional or Non-conditional Election to the Constituent assembly
From all the indications, if no behind the scene deal had been struck among the conflicting parties before the April 24 speech of King Gynendra, April revolution concluded with a clear understanding that the country would move to-wards the sustainable peace on the basis of the road map of the seven party alliance (SPA) and their twelve points 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. This mean to allow this body to decide the future shape of the country's political structure including the nature of the state, republican or with monarchy, the unitary or federal, religious or non religious etc. And in order to ensure the free and fair election to this body, there has to be some sort of representation including those of the CPN Maoists and other political actors in the government and management of the arms of the rebels and clear delineation of the responsibility of the government army during the whole election and constitution making process.
If these were to be assumed as the natural process for the new constitution making process through constituent assembly, then neither the current government nor the restored HoR in the name of being the supreme body could pre-empt the power of the constituent assembly. Nor in relation to the proposed constituent assembly, the restored HoR could not declare itself as supreme body since many sections of the society who contributed during the April revolution are not represented in it.
Similarly, if one believes in rule of law, the fundamental law of the land could not be partially annulled by the resolution of the HoR. Some other ways, such as the drafting and promulgation of an interim government act 2006 should have been found out and the country's future political set up should have been left to the constituent assembly to decide. But the HoR came up with a resolution that is tantamount to the constitution of the country and declared the monarchy as a ceremonial monarch and has gone to the extent of making this institution totally useless institution but interestingly have agreed to bear its living other expenses without allowing the people to express their views to decide whether or not this institution to stay. Similarly, the country has been declared as a secular country and free from untouchability.
But the Prime Minister G.P. Koirala, based on his press meeting of June 14, 2006 in his hometown Biratnagar, has gone to the extent of indicating that the country would continue to have the ceremonial monarch. These are the fundamentals, which people should have been left free to decide. Since these have already announced and the government and the HoR are doing homework to operationalise and institutionalise the resolutions and pronouncements, one could ask whether like in South Africa, these are 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 those who participated in the recently concluded revolution including the Maoists and only with their consent the resolutions of the HoR and explanation of the Prime Minister Koirala, whether people may or not like it, could have served as basic principles or guiding principles for drafting the new constitution.
In the light of all theses, the country is now set to have a new constitution through a constituent assembly. And there is demand from all quarters that it should reflect the social mosaic of the country in terms of its composition. In other words, there is a demand for the representation of the all regions (geographical) and sections of the society in the constituent assembly. So the questions now required to address are: whether the present constituency could serve as the basis for representation of or new territorial basis is drawn?
Similarly, how and what manner the underdeveloped regions of the country, such as the Karnali Zone, which because of the century long neglect from the Singh durbar-- the seat of power is demanding the right to self determination, could be represented.
The other issue without whose satisfactory resolution the country might heavily bleed once again is the manner through which representation of the different sections of the society, gender, ethnic groups and dalits and religion would be made in the constituent assembly. In this regard there are however, several thoughts abut this matter. One school of thought is that political parties seeking election to this body should declare in their manifestos about how much percentage they would allocate for the territorial representation and how much for the different sections of the society. And they should be allowed to seek the election as a party and based on the percentage of votes received they would send the representatives to the assembly on the basis of what they have proposed in the election manifestos. However, those who do not subscribe this view would like to see the political parties making the list known before the election and based on the percentage of votes received they should select the candidates from the list published, i.e according to the listing order, on the basis of their agreed formula of proportional representation. There is another school of thought which want that the different sections of the society be represented on the basis of collegiate representation system. So there is a need to sort out this issue.
In order to address these issues, there is a need for a nation wide debate and based on such debates some sort of formula has to be worked out. The size and election to the constituent assembly would depend upon the resolution of these issues. So far the political parties that are now in power have neither began a serious dialogue with the different sections of the society, civil society and research and academic institutions nor seem to have formally (based on my knowledge) asked these bodies to come up with concrete suggestions on these matters.
When discussed with the knowledgeable persons whether the parties represented in the government or the Communist Party of Nepal Maoists has the blue prints on the composition of the proposed constituent assembly, the answer was ' I don't think that they have such blueprints'. 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.
Tarai Representation
Of the three geographical regions, Tarai has remained an important area for various reasons. One of them is for its Jamindaris (main source of income from land) of so-called aristocratic families or feudals, mainly those of Bahun, Chhetris/Thakuris/Ranas and Newars. Related is for being the pull factor for the migrants from within and outside the country to come to this area, clear the forest, settle and start farming in the cleared areas.
According to those who are championing the cause of this area, who call themselves Madeshis and the area as Madesh, a large number of such settlers, especially those of the Medhesi stock, other than those migrated from the hills are still in a condition of statelessness due to the lack of citizenship certificate. It may be recalled that during the planting and harvesting seasons of the crops thousands of workers from across the international borders came to Tarai as wage earners and most of them never returned to their native places.
The exact number of such people could be a subject of debate as some claim it runs into 4 million. But the fact remains that this is a problem requiring resolution and in absence of which within a family one would find citizens and non-citizens. Furthermore, those who are poor and have no asset of their own as this contributor itself, for example, has seen and observed in the district of Kapilvastu are being denied of benefits which citizens of the country could avail of. The Nepal Sadbhavna Party (NSP) one of the Seven Parties Alliance (SPA) and the part of the present government has raised this issue loudly. 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) has does take note of this issue. How this issue would be tackled by the present government and in what manner it would take the CPN Maoists into confidence with regard to this matter is not yet clear. But, unless Madeshi problem, especially that of the citizenship, is dwelt upon before the election to the constituent assembly another revolution may start from this area. Also the issue is so sensitive that needed to be properly and carefully handled.
Constitution Making Process
What procedure the constituent assembly would adopt in the whole process of constitution making is yet to be clearly spelt out by the concerned actors to its stakeholders. Whether it would constitute a drafting committee from among its members or constitute a drafting committee from among the experts and discuss what is proposed and approve for final adoption. In either case the assembly could perform the functions of the Interim parliament. Each of these alternatives has to be weighed from the points of view of merits and demerits. Since a number of persons from the academia and other fields have their own started thinking about these things, there was a need on the part of the major political actors, especially the SPA and government and the CPN Maoists should taken other actors into confidence and made a request to these people to come up with different alternatives including the merits and demerits of each of the alternatives suggested.
Conditional or Non-conditional Election to the Constituent assembly
From all the indications, if no behind the scene deal had been struck among the conflicting parties before the April 24 speech of King Gynendra, April revolution concluded with a clear understanding that the country would move to-wards the sustainable peace on the basis of the road map of the seven party alliance (SPA) and their twelve points 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. This mean to allow this body to decide the future shape of the country's political structure including the nature of the state, republican or with monarchy, the unitary or federal, religious or non religious etc. And in order to ensure the free and fair election to this body, there has to be some sort of representation including those of the CPN Maoists and other political actors in the government and management of the arms of the rebels and clear delineation of the responsibility of the government army during the whole election and constitution making process.
If these were to be assumed as the natural process for the new constitution making process through constituent assembly, then neither the current government nor the restored HoR in the name of being the supreme body could pre-empt the power of the constituent assembly. Nor in relation to the proposed constituent assembly, the restored HoR could not declare itself as supreme body since many sections of the society who contributed during the April revolution are not represented in it.
Similarly, if one believes in rule of law, the fundamental law of the land could not be partially annulled by the resolution of the HoR. Some other ways, such as the drafting and promulgation of an interim government act 2006 should have been found out and the country's future political set up should have been left to the constituent assembly to decide. But the HoR came up with a resolution that is tantamount to the constitution of the country and declared the monarchy as a ceremonial monarch and has gone to the extent of making this institution totally useless institution but interestingly have agreed to bear its living other expenses without allowing the people to express their views to decide whether or not this institution to stay. Similarly, the country has been declared as a secular country and free from untouchability.
But the Prime Minister G.P. Koirala, based on his press meeting of June 14, 2006 in his hometown Biratnagar, has gone to the extent of indicating that the country would continue to have the ceremonial monarch. These are the fundamentals, which people should have been left free to decide. Since these have already announced and the government and the HoR are doing homework to operationalise and institutionalise the resolutions and pronouncements, one could ask whether like in South Africa, these are 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 those who participated in the recently concluded revolution including the Maoists and only with their consent the resolutions of the HoR and explanation of the Prime Minister Koirala, whether people may or not like it, could have served as basic principles or guiding principles for drafting the new constitution.
As a result of all these developments, one could say there are more confusions than clarity with regard to the composition and decision making structure of the constituent assembly, without getting rid of all these the country will not have smooth sailing with regard to the election to the constituent assembly and drafting of the new constitution. But to an utter surprise or frustration to many the government and leaders of the SPA and to a certain extent the CPN Maoists are yet to be serious in all the matters related to constituent assembly and drafting of a new constitution.
The end
KathmanduJune 15, 2006
This article has been send to Nepal Monitor. Com for publication.
posted by Dwarika Nath Dhungel @ 10:47 PM
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