By DR BIPIN ADHIKARI
The Kathmandu Post April 24, 2008
http://www.kantipuronline.com/kolnews.php?&nid=144860
With the election to the Constituent Assembly accomplished, the focus of political debate in Nepal has at once shifted from the electoral issues to the issues involving formation of a new government according to the fresh mandate. But in the absence of a clear direction under the Constitution, which suffers from many lacunas and caveats, a very constitutional process is about to be handled in an incredibly controversial way.
According to the Interim Constitution, the Constituent Assembly is intended to serve two purposes: first, it has to draft and adopt a new constitution based on popular mandate of the voting adults in the country.
Secondly, it has to bring into being an accountable government to run the country until fresh election under the new Constitution produces a new executive. So, the existing legislature and the executive arm of the government are not to co-exist with the Constituent Assembly designed by the Interim Constitution. As a consequence, the responsibility of the Constituent Assembly is not only regarding the exercise of the constituent power of the people, but also about creating provisions to run the country for the remaining part of the interim period.
This is not always a chosen practise. As an example, in Bolivia which is about to complete the constitution making process, the election to the Constituent Assembly and the timetable for it was announced by Evo Morales, an indigenous leader, who took over as president in January 2006 under the existing Constitution. While both the government and a regular legislature took the normal business of the state, the Constituent Assembly concentrated in the constitution making without being subjected to any real or intangible restraints from any quarter. Its recommendations would need to be approved by a two-thirds majority of the Assembly and then be submitted to a national referendum for its final approval. At least in principle, this arrangement is aimed at making sure that the rule of law prevails, and there is little excuse for any eventuality.
The model of constituent assembly that has been enshrined into the Interim Constitution of Nepal is different. First, it has created a Constituent Assembly which comes with certain prescriptions like federal structure of the state, the abolition of monarchy, and so on, that pre-empts the power of the Constituent Assembly in a very unacceptable way. Secondly, the unicameral house is supposed to be a legislature, as well as the organ creating the interim governing body.
Thirdly, and partly related with the second feature, is the faulty jurisprudence of ‘consensual’ government’ that has been institutionalised by the Interim Constitution to eliminate opposition at a time when the country needs it more than ever before. Consensus is important in constitution making, but a loyal opposition to the executive power is a crucial requirement, when the country is bringing far-reaching changes in the country.
Article 38(1) of the Interim Constitution ordains that the prime minister is to be appointed on the basis of political consensus. There is no provision in it as to who should initiate the process; how it should be done; and whether there are constitutional rules to be complied with. There is simply nobody who has the authority to judge the competing claims of different parties to lead a new government. Political consensus in the formation of government is the rule even if there is a visibly majority party in the House; or there is a possibility of a strong coalition government. The status of a largest party is not recognized by the Constitution. It goes without saying that in terms of the Constitution, the recent eagerness of the CPN (Maoist) to lead or form a new government has no constitutional basis. This novelty in the constitutional thought is hardly understandable.
Additionally, if consensus cannot be reached as above, the prime minister is to be elected by a majority of two-thirds of the members of the Constituent Assembly. Again, although the Council of Ministers is to be formed under the prime minister’s chairmanship, the Council itself is to be the product of political consensus. This means that even if a consensual prime minister is found, his authority to create a cabinet of his choice is not recognized.
In this jurisprudence of consensus, the difference between those who have more popular support, and those who have barely survived, is not constitutionally accepted. So, essentially, a majority prime minister has no majoritarian power, even if that means a clear disregard to the voters, and the fresh mandate they have conferred on the prime minister. This stringent standard penalises a party or a coalition group which commands a majority in the House for its proved electoral strength (instead of recognizing its worth).
This precarious provision of the Interim Constitution comes with another off the wall formulation. For the purpose of this constitution, ‘political consensus’ means the political consensus reached between the seven political parties — Nepali Congress, CPN (UML), Janamorcha Nepal, Nepal Sadbhawana Party (Anandidevi), Nepal Workers and Peasants Party, United Left Front, and CPN (Maoist). Technically, the Constitution does not require the vote of those parties which did not join the 8 November 2006 consensus, or those who have entered the Constituent Assembly either as a new party, or as an independent candidate.
Oddly enough, the Interim Constitution no where states that the incumbent prime minister must give way to the prime minister elected by the Constituent Assembly. In fact, the Constituent Assembly cannot sit by itself if the prime minister does not call it. He must call it first and then resign voluntarily giving way to the new prime minister. In other words, if Prime Minister GP Koirala decides not to resign at his sweet will, there is no other constitutional way out to force him out except through a no-confidence motion. But for that to happen he must be benevolent to call the house. Even if the House is called, the no-confidence motion requires a two-thirds back up, which does not seem to be possible at this stage.
As this Constitution lays down, the Constituent Assembly at its first meeting (as summoned by the prime minister within 21 days after the final results of the election of members have been made public by the Election Commission) is supposed to implement Nepal’s transition to republic. Here too, such a first meeting cannot rightfully move such a resolution without getting the 26 unelected members of the Assembly on board under Article 63(3).
For this to happen, a government with a fresh mandate must be formed first, and it must be allowed sufficient time to find qualified nominees for the purpose of appointment, unless the parties use the power of the outgoing prime minister to give effect to this provision.
Additionally, the formation of the government itself will be questionable without the voting rights of these 26 members first recognized. Even if the ‘consensus’ formula works to find out a way out, irrespective of the legal validity of the move, the Constitution does not allow the space for the appointment of a president to replace the king as the head of the state. It is possible only after the fourth amendment of the Constitution. The Constitution is clear in the prescription that the prime minister will act as the head of the state until the monarchy is not voted out; but it is not clear as to who will fill up the vacuum once they are successful to do it.
Moreover, a unicameral house of 601 people is a very shrill arrangement. An intelligent strategist, who believes in consensual process of decision making, would never create such loud-mouthed machinery. It is impracticable also because the interim Constitution has not provided any mini-legislature within the Constituent Assembly to work on legislative and policy issues so that these jobs are done professionally within such a unit keeping the time of the house free for constitution-making business. It is too much for all 601 assembly men to work in the Constituent Assembly as both the framers of the constitution and as legislators, and in a meaningful way.
Things do not become legal simply because there is consensus. Unfortunately, at that level of simplicity, it just does not work. It is giving the impression that even after housing 601 assemblymen, freshly elected and nominated, the culture of ad hocism is not likely to disappear in Nepal. Once again the possibility of compromising the higher principles of law and constitutionalism in forming the new government has become imminent.
[lawyers_inc_nepal@yahoo.com]
Posted on: 2008-04-23 19:34:24 (Server Time)
Tuesday, April 29, 2008
Thursday, March 22, 2007
Amendments in interim constitution welcomed \
Amendments in interim constitution welcomed [ 2007-3-12 ]
RSSBIRATNAGAR, March 11: A rally was organized here to welcome necessary amendments made in the interim constitution along with provision of state restructuring by interim -legislature, federal governance system, inclusive representation in all bodies of the state.The participants of rally organized by the eight political parties also chanted slogans demanding the date for the polls be fixed immediately.Speaking at the meeting organized at JanAndolan Chowk after the rally, District Secretary of the Nepali Cogress,Pitambar Dahal urged the Madheshi leaders to withdrew their agitation programmemes as the loktantrik government has already addressed the issue of rights of the Madheshi people which have been overlooked for the past 238 years The Central Member of the CPN( UML), Guru Baral said that the Loktantrik government has already initiated moves to address various problems of 126 indigenous communities and linguistic groups.On the occasion, speakers pointed out the need to take the CA polls to a successful conclusion by forming an interim government immediately in order to institutionalize Loktantra.
RSSBIRATNAGAR, March 11: A rally was organized here to welcome necessary amendments made in the interim constitution along with provision of state restructuring by interim -legislature, federal governance system, inclusive representation in all bodies of the state.The participants of rally organized by the eight political parties also chanted slogans demanding the date for the polls be fixed immediately.Speaking at the meeting organized at JanAndolan Chowk after the rally, District Secretary of the Nepali Cogress,Pitambar Dahal urged the Madheshi leaders to withdrew their agitation programmemes as the loktantrik government has already addressed the issue of rights of the Madheshi people which have been overlooked for the past 238 years The Central Member of the CPN( UML), Guru Baral said that the Loktantrik government has already initiated moves to address various problems of 126 indigenous communities and linguistic groups.On the occasion, speakers pointed out the need to take the CA polls to a successful conclusion by forming an interim government immediately in order to institutionalize Loktantra.
Nepal's Interim Constitution amendment bill passed
March 10, 2007
http://english.people.com.cn/200703/09/eng20070309_356101.html
Nepal's Interim Constitution amendment bill is passed by Interim Parliament on Friday.
According to local leading media group's website THT Online, Nepali Interim Parliament passed a government-sponsored bill aimed at amending the interim statute by a two-third majority. In the 329-member house, 278 members voted for the amendment when Speaker Subash Kumar Nemwang put the bill for voting.
Nepali Congress, the Communist Party of Nepal (Unified Marxist- Leninist), the Communist Party of Nepal (Maoist, CPN-M) and Nepali Congress (Democratic) members voted for the amendment. The top four parties in the Interim Parliament issued whip to their members to be present in Friday's session.
Five parliament members voted against the Bill. Rastriya Prajatantra Party members are absent in the voting. Prime Minister Girija Prasad Koirala attends Friday's session of the House.
On Feb. 18, minister for law and parliamentary affairs Narendra Bikram Nemwang registered the bill to amend the Interim Constitution at the Parliament Secretariat. The big parties have agreed to amend the Interim Constitution in two phases so as to address the demands of various agitating parties.
The first phase will take into account the commitment made by Prime Minister Girija Prasad Koirala to address the demands of the agitating Madhesi community in his second address to the nation which prompted the Madhesi People's Rights Forum to halt its Terai unrest for a while.
On February 7, the eight major Nepali political parties, including Seven-party Alliance and CPN-M signed an agreement guaranteeing the Terai region representation in the constituent assembly in proportion to its population. After that, PM Koirala addressed the nation after his first addressing on Jan. 31.
The violent demonstrations, mainly led by Madhesi People's Rights Forum (MPRF, also called Madhesi Janadhikar Forum), caused more than twenty people's death. Many Terai towns witnessed curfews, strikes and widespread vandalism of public and private property in the unrest.
According to the leading media group's website eKantipur, the bill proposes Constituency Delimitation Commission to revise existing electoral constituencies. The Commission is to be headed by a retired Supreme Court justice who will recommend the number of constituencies to be added in the Terai region based on population proportion. In the hilly and mountain districts the increment will be based on the population growth.
The Commission will take into account the transportation facility, community and culture of the local populace besides population, geographical feasibility and specialty, density of population and border of the administrative districts while revising the constituencies.
With the new provisions enforced, the number of the constituent assembly members, which were fixed at 425, will soar significantly.
The bill also proposes amending Article 138 of the Interim Constitution to ensure that future model of the state would be federal. Ultimate decision related to restructuring of the state and the federal system will be carried out as determined by the Constituent Assembly.
The Council of Ministers will nominate 17 members to the assembly from among the people recognized for making significant contribution to the country. Source: Xinhua
http://english.people.com.cn/200703/09/eng20070309_356101.html
Nepal's Interim Constitution amendment bill is passed by Interim Parliament on Friday.
According to local leading media group's website THT Online, Nepali Interim Parliament passed a government-sponsored bill aimed at amending the interim statute by a two-third majority. In the 329-member house, 278 members voted for the amendment when Speaker Subash Kumar Nemwang put the bill for voting.
Nepali Congress, the Communist Party of Nepal (Unified Marxist- Leninist), the Communist Party of Nepal (Maoist, CPN-M) and Nepali Congress (Democratic) members voted for the amendment. The top four parties in the Interim Parliament issued whip to their members to be present in Friday's session.
Five parliament members voted against the Bill. Rastriya Prajatantra Party members are absent in the voting. Prime Minister Girija Prasad Koirala attends Friday's session of the House.
On Feb. 18, minister for law and parliamentary affairs Narendra Bikram Nemwang registered the bill to amend the Interim Constitution at the Parliament Secretariat. The big parties have agreed to amend the Interim Constitution in two phases so as to address the demands of various agitating parties.
The first phase will take into account the commitment made by Prime Minister Girija Prasad Koirala to address the demands of the agitating Madhesi community in his second address to the nation which prompted the Madhesi People's Rights Forum to halt its Terai unrest for a while.
On February 7, the eight major Nepali political parties, including Seven-party Alliance and CPN-M signed an agreement guaranteeing the Terai region representation in the constituent assembly in proportion to its population. After that, PM Koirala addressed the nation after his first addressing on Jan. 31.
The violent demonstrations, mainly led by Madhesi People's Rights Forum (MPRF, also called Madhesi Janadhikar Forum), caused more than twenty people's death. Many Terai towns witnessed curfews, strikes and widespread vandalism of public and private property in the unrest.
According to the leading media group's website eKantipur, the bill proposes Constituency Delimitation Commission to revise existing electoral constituencies. The Commission is to be headed by a retired Supreme Court justice who will recommend the number of constituencies to be added in the Terai region based on population proportion. In the hilly and mountain districts the increment will be based on the population growth.
The Commission will take into account the transportation facility, community and culture of the local populace besides population, geographical feasibility and specialty, density of population and border of the administrative districts while revising the constituencies.
With the new provisions enforced, the number of the constituent assembly members, which were fixed at 425, will soar significantly.
The bill also proposes amending Article 138 of the Interim Constitution to ensure that future model of the state would be federal. Ultimate decision related to restructuring of the state and the federal system will be carried out as determined by the Constituent Assembly.
The Council of Ministers will nominate 17 members to the assembly from among the people recognized for making significant contribution to the country. Source: Xinhua
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