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Constituent Assembly threatened?

Bipin Adhikari
The Kathmandu Post, 25 September, 2008
Source: The Kathmandu Post

The recent assertion of Prime Minister Puspa Kamal Dahal that Nepal will neither adopt a complete communist system of governance nor will it accept the system of parliamentary democracy within its traditional parameters has surprised many critiques about his intentions. The prime minister also added that the CPN-Maoist is opting for parliamentary system only for now while its ultimate goal of achieving a communist system remains unchanged.

No sooner had the prime minister spoken his mind, the leader of his main coalition partner CPN (UML), Jhalanath Khanal, also took pain to clarify more on behalf of his party: "the British model parliamentary system has become outdated. We have to leave that outdated model and go to our own model in the new political context." However, if the Maoists, in the name of traditional parliament, intend to rule out the existence of the reformed parliamentary system, then the UML strongly disagrees.

There are definitely different models of parliamentary democracies in the world. As far as the British (Westminster) model is concerned, it has been employed by much of continental Europe, Israel, Japan, Nepal, many of the former British colonies in Africa and Asia, and most Caribbean countries. In all these countries, the prime minister, appointed by the constitutional head of the state, is typically the leader of the party that wins the majority of votes to the House of Representatives and his Cabinet members are also legislative members from his party or ruling coalition. The administration is carried on according to the wishes of the people as expressed through their representatives in parliament.

The principle of ministerial responsibility is so strong that if the prime minister is voted out of the legislature, the executive is forced to step down, and clear the way for another government that can command the confidence of the elected House. Continued co-operation between the executive and legislature is required for the government to survive and to be effective in carrying out its programmes. The system works in the framework of bicameral legislature, multiparty system, periodic elections, parliamentary opposition, independent judiciary and the rule of law, constitutional conventions, free press and basic rights of the people. The system tends to have a more adversarial style of debate and the plenary session of parliament is relatively more important than legislative committees.

While these basics continue to operate, the type of the Westminster model of parliamentary democracy traditionally described by A. V. Dicey, Walter Bagehot, H. J. Laski, K. C. Wheare, or Ivor Jennings have long gone. It is not the same parliamentary system that Puspa Kamal Dahal, Jhalanath Khanal and many of the same generations must have read in their thirties. Although the Palace of Westminster is same, the norms, values, institutions and procedures have constantly evolved to modernize the system, and enhance its democratic and the rule of law credentials according to the changing requirements. Apparently, the off-hand critiques need to change the books on their shelves; and update themselves on innovations that continue to be made in the process of evolutions.

No model is static. Every model is an experiment with the terms of the time. In recent years, the United Kingdom has gone through a period of profound constitutional change. Efforts are made to change and modernize the composition of the House of Lords, the traditionally unelected chamber, and the procedures of the House of Commons, to enact freedom of information legislation designed to lead to more open government; to devolve power to Scotland and Wales; to reform local government; to establish a directly elected 'strategic authority' and mayor for London; to strengthen regional government in England; to enact human rights enforceable in UK courts; and to continue to work on a bipartisan basis for sustained peace and reform in Northern Ireland.

In fact, Tony Blair, the predecessor of the present British Prime Minister Gordon Brown, even described his government's programme of constitutional reform as 'the biggest programme of change to democracy ever proposed'. The present government has proposed giving parliament powers to ratify treaties and decide whether troops should be deployed. It also supports putting the 'Ponsonby Rule' -- under which treaties must be laid before Parliament for 21 sitting days before ratification -- on a statutory footing. It has proposed that the protests in Parliament Square should not be subject to unnecessary restrictions.

The relevant committee in parliament agrees, but says such freedom "must be balanced against the need for the police and other authorities to have adequate powers to safeguard the proper functioning of Parliament and protect the amenity value of Parliament Square". It also argues that the government's proposed reforms of the judicial system come too soon after the Constitutional Reform Act of 2005, which changed the way judges are appointed.

What has been important is the tradition of practical progress, timely accommodation, responsive evolution and subtle statecraft. The remarks that have been made by the prime minister are not just objectionable, but also premature. If the 'traditional' aspects of the parliamentary system are bad, and need change, the people of this country want to know what they are, and why they need to be reconsidered. These issues must be tabled in the Constituent Assembly (CA) giving full opportunity to the constituents to discuss the matter in food faith.

A parliamentary system worth its salt, whether traditional or modern, will never allow a communist republic to grow from the in-house process. Its parameters are clear and historically established. Such remarks can potentially threaten the CA members who have assembled there with the responsibility to write a new democratic constitution for the country.

It is time for Prime Minister Dahal to think like the leader of the nation rather than of a guerrilla entity that were trained to smash and grab.

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