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Discussion on Modality and Process of Constituent Assembly

A two days interaction programme was held among 250 students and teachers on the issue of Constituent Assembly at Kathmandu School of Law on 25th April, 2006. Discussion primarily focused on the changing political scenario after the historical demonstration and the need to safeguard and transform the objectives of the movement peacefully by adhering into the road map defined by the peopleís demonstration. Participants agreed that the last resort of the roadmap is Constituent Assembly and the mechanism to achieve is through political or constitutional process. The participantís ideas and suggestion have been listed as below;

1.             Rajkumar Karki

                There should be unconditional Constituent Assembly excluding core values

                First, there should be dialogue with the Maoist before Constituent Assembly to see whether Constituent Assembly is mandatory and essential or not. Primarily, agreement with the Maoists to go into the Constituent Assembly is the important one.

2.             Rudra Prasad Pokhrel

                Before going into Constituent Assembly a referendum should be carried out to decide on the kingís fate; whether to go for constitutional monarch; or a ceremonial king with sanction on power; or for republican state. That referendum will decide on the type of constitution and only then we can proceed for Constituent Assembly.

3.             Mohanraj Bhattarai

                Constituent Assembly should be free from any prejudice and foul play otherwise people will be deceived.

4.             Nirajan Adhikari

                Provision should be made to lay down arms in presence of international mediators.

                Interim government should be formed between Maoists and the seven-party alliance and that government should hold election to Constituent Assembly.

5.             Apurba Khatiwada

                Constitution which is drafted through holding of election to Constituent Assembly should be again approved by referendum.

                Representation should be on the basis of caste and diversity not on the political ideology.

6.             Ram Parsad Aryal

                A resolution and promise should be made on the first meeting of House of Representative to go for Constituent Assembly.

                Provision of candidacy to election of Constituent Assembly should be made on the basis of most dominant group of that particular place.

                Local government and upper house should be rejuvenated and restored.

7.             Kumar Ingnam

                Election to Constituent Assembly should be held in a decisive manner to decide about the kings position

                Every process should move ahead on the crux of 12 point and 6 point agreements. These agreements should serve as the roadmap.

                A separate constituency should be allocated for the indigenous nationalities, Madhesi and Dalit communities as the reservation system inside the party will not truly represent the communities.

8.      Sharmila Parajuli

                There should be a free and fair competition in Constituent Assembly while not sticking to the concept of reservation.

9.             Bidur Dhungana

                Before going into Constituent Assembly, each candidate should prepare his/her manifesto.

10.         Bholanath Dhakal

                Before going into Constituent Assembly, House of Representative (HoR) should draft Election Act, and Constituent Assembly Power and Responsibility Act.

11.         Prabhakar Khanal

                Since the Constitution of Nepal, 2047 promotes and harbors deceptive government, it should be annulled.

12.         Ganesh Shrestha

                Amendment should be made on 2047 constitution to include the provision for Constituent Assembly.

                People should be properly sensitized about the process, modality and function of Constituent Assembly before going into the election.

                Political parties and Maoists should hold dialogue and go for Constituent  Assembly

13.         Manoj Adhikari

                We must not be entangled in the content of the Constituent Assembly but rather go for the objective first.

                Political parties should hold dialogue with the Maoist and hence form Interim Government and that Interim government should hold election.

14.         Arjun Adhikari

                The legitimacy of future constitution should be decided now.

                 There should be provision to amend any article and clause of the constitution by two third majority of the members of HoR and its immediate ratification by the King.

15.         Saroj Raj Regmi

                An Interim government including Maoists should be formed to go for Constituent Assembly

16.     Madan Raj Pant

                Interim government with the involvement of Maoists should be formed and that government should involve peopleís participation in drafting new constitution without going into Constituent Assembly

17.         Yamuna Bhattarai

                Power of the King should be curtailed by amending the present constitution by the HoR and there should be provision for electing representatives of Constituent Assembly by single transferable voting system.

18.         Kedar Koirala

                The concept of Inclusive Democracy should be incorporated in the new constitution.

19.         Surendra Mahoto

                Without any disagreement it is mandatory to go for unconditional Constituent Assembly.

                Remedies to all the problems could be found in Constituent Assembly.

                Parties and people should go for Constituent Assembly on the basis of political ideology.

                Election to Constituent Assembly should be held through political conference of all stakeholders and there is no need to be guided with the formalities and boundaries of the present constitution.

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Modality of Constituent Assembly proposed in the programme

The participants of the programme proposed following seven modalities for Constituent Assembly.

1.             Seven Party + Decision of Cabinet + Proposal on HoR + Amendment on Constitution + Constituent  Assembly Act

2.             Agreement of Seven-Party alliance and Maoist + Interim Government

3.            Agreement of Seven-Party alliance and Maoist + Interim Government + Interim Constitution + New Constitution

4.             Seven Party + Cabinet + Interim Constitution (Through HoR) + Election to Constituent Assembly

5.            Seven Party + Cabinet + Peopleís Referendum on King's Position + Constituent Assembly

6.             Referendum + Constituent Assembly

7.             Interim Constitution + Government + Constitution through Political Understanding          

Assoc. Prof. Yubaraj Sangroula very precisely commented on each of the modality. His arguments can be summarized as follows:

1.            Constitution is a fundamental package which provides legitimacy to the political expressions for State's structuring. So the thought of not looking for its legitimacy and opting to go directly for the Constituent Assembly through political decision is immature and impractical and it may endanger the whole mission of Constituent Assembly.

2.             Sovereignty of the State never remains in vacuum and it is the present constitution which has for the first time recognized peopleís sovereignty. Article 3 of the present constitution has explicitly stated the people are the source of state sovereignty and hence ignoring or annulling the present constitution means that we donít recognize the people's sovereignty.    

3.            The present constitution shouldn't be undermined merely by influence of the revolutionary ideas. It will be wise enough to legitimize all process of Constituent Assembly and protect the sovereign power of people through the present constitution. In this regard, as soon as the HoR adopt the resolution for Constituent Assembly election, amendment should be made as follows in relation to the provision on executive and legislature part of the present constitution.

a.             The Council of Ministers should hold all right to declare and conduct the election to constituent  assembly;

b.             The HoR should ratify the decision to Constituent Assembly as forwarded by  Council of Ministers;

c.             The HoR has all the rights to draft the essential laws and if needed have the power to repel the present constitution and draft the interim constitution;

d.             The HoR has the right to repel Article 53(4) and 127 of the present constitution and declare its own dissolution.            

4.            Present Council of Minister shall be dissolved after vesting all rights relating to the Constituent Assembly election to the HoR and Council of Ministers, and interim Council of Ministers shall be constituted including the Maoist and the representatives of civil society. To do this HoR should be empowered through amendments in the present constitution.

5.             Nepal Army shall completely remain under the supervision of Council of Minister. There shall be a National Defense Council on the constitution consisting of the Prime Minister, the opposition party leader, Speaker of the House of Representative and the Commander-in-Chief of Nepal Army as a supreme body to operate and use the Army.

6.             HoR shall frame two laws:

a)            Constituent Assembly Election Act;

b)            Constituent Assembly's Meeting, Power and Responsibility Act

7.             Council of Minister should be empowered to declare election constituency based on the Constituent Assembly Election Act such that:

a)            The prevailing 205 Election constituency shall remain as political election constituency;

b)            One seat per one million population shall be secured for indigenous nationalities in which there shall be provision of candidature and voting rights of the concerned nationalities only;

c)             There should be separate representation of Dalit on the basis of their population;

d)            Provision for 33% of the total seat in HoR should be secured for women;

e)            One sear per ten thousand population shall be secured for journalists, lawyers, medical doctors, engineers, chamber of commerce, tourism entrepreneurs, university and school teachers etc.

8.             The final authority to decide on content of constitution and approve shall remain with the Constituent Assembly constituted pursuant to the above provision. Accordingly, the Constituent Assembly shall act on the following:

a)            Elect the Chairman of the Constituent Assembly;

b)            Decide on the discussion and resolution process of the Constituent Assembly;

c)             Take final decision on the issues raised in the Constituent Assembly;

d)            Declare the Constitution

9.             The government shall hold the election of the HoR immediately after the issuance of the Constitution by the Constituent Assembly and the new government will be formed accordingly.

         Thus, this first model is more practical and constitutional.

10.         Negotiation between Maoist and Government, declaration of Interim Government and election of Constituent Assembly is another model. In this model, interim government shall remain all powerful but there are chances of government coming under influence of national and international power centers. It also doesn't answer why the elected HoR should not do the same work. Present constitution doesnít suit in this model and it is either difficult to make other provisions in place of this constitution. At the same time it is not possible to execute state function in the absence of constitution after repealing the present constitution. In the other hand, after repealing the present constitution, all the residuary power will be shifted to the king and after the annulment of Article 3, the king, instead of people, will remain the sovereign power. Hence, although seen revolutionary, there is danger that this model may be practically regressive.

11.         Negotiation between Seven party and Maoist, interim government, internal constitution and Constituent Assembly is another model. In this model also the problem pursuant to the above model persists.

12.        Council of Minister of Seven party, interim constitution, transfer of all parliamentary authority to the Council of Minister and election of the Constituent Assembly is another model. In this model, it may take long time to constitute and declare the interim constitution. On the other hand, Maoists may reject the interim constitution formed without their involvement. On the same way, it seems more convenient to amend the present constitution instead of constituting the Interim Constitution.

13.         Council of Minister of seven parties, declaration of Constituent Assembly from king and enactment of laws from HoR is another model. Although it seems that the King is defeated in this model, it is a regressive act. It makes the king as the source of Constituent Assembly, not the people.

14.         Model of Clause 11 is also proposed as an alternative model in case of referendum with options of Monarchial system or Republican system. But this may prove lethal as the result may come as the referendum held on 2036 B.S.

         Hence, according to Assoc. Prof. Sangroula it will be wise to adopt the easy and convenient process instead of the complicated one. He preferred the first model to be more practical and convenient but he suggested fulfilling the following pre-conditions to implement the said model.

a)            Terminate all the post of all the persons working against democracy in the royal regime and punish them;

b)            Punish all the human rights offenders;

c)             Issue directive to the Army official not to express their opinion in State's policy matters; and

d)            Declare ceasefire.

 

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