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 himself, 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 Procedures
An 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.
• Previous article by the author: Beyond Monarchical Republic, June 4, 2006
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 email@example.com
Posted by Editor on June 22, 2006 1:15 PM