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Controversies at Constituent Assembly

Bipin Adhikari
The Kathmandu Post, 11 September, 2008
Source: The Kathmandu Post

Disagreements over two major issues are said to be obstructing the passage of the draft Constituent Assembly Rules of Procedure. The first relates with the appropriate size of the proposed Constitution Drafting Committee and the second with the issues that might be subjected to conscience vote during the constitution making process.

Both these issues are significant concerns today. The experts of the Constituent Assembly Secretariat, who helped devise the draft Rules of Procedure, provided that the size of the Constitution Drafting Committee shall be limited to only fifteen members in order to make sure that this small and competent group fulfils its responsibility efficiently in a small core group in the house.

Similarly, they also provided that the Chairman of the Constituent Assembly may allow conscience votes to the members during the constitution making process when he finds in consultation with the members of the House Steering Committee that the issues before them involve very contentious moral dilemma. In such a situation, political parties were supposed to keep off from taking positions or issuing whips on these issues, and members were allowed to cast their vote according to their individual conscience.

The message that has come out of the row is loud and clear. All twenty-five parties in the Constituent Assembly, irrespective of their strength in the House, want to be represented in the Constitution Drafting Committee in view of its final and crucial role in the constitution drafting business. In other words, they hate the idea of building coalitions within the House to get represented in the 15-member Constitution Drafting Committee. Even a party which has only one member in the House wants to see its member doing the job of the constitutional draftsman sitting along with the representatives of the other major parties.

Apparently, what they are demanding comes out of the accommodative jurisprudence of 'consensus,' which has been overemphasized over the last two years, but which, if accepted at this juncture, has the potential of weakening the electoral mandate of the major parties in the government and the opposition. But what is more important is the fact that it is highly inconceivable that a large Committee which gives individual representation to each small party in the unicameral House, and then allows additional members on the proportional strength of each major party can write any meaningful Constitution. This will make the job of writing the Constitution messy and fatalistic.

The second thorny issue involves the vote of conscience. It is learnt that some minor party representatives, especially the Madhesi and Janjati groups, want to mould the draft provision as to the vote of conscience in a way that allows them more political maneuverings against the party whips of the major national parties -- Maoists, Nepali Congress and CPN (UML). These representatives want conscience vote to be offered to all Madhesis and Janjatis in the issues that involve them. That virtually means releasing the Madhesis and Janjatis of the major parties from the control of their party high command. Obviously, the party system may face a major challenge from within.

In a parliamentary system like ours, the elected members of a House who belong to a political party are usually required to toe the party line on significant political issues for fear of censure or expulsion from the party. Whether it is the United Kingdom, New Zealand or Australia, parties exercise this control over the votes of individual members of the House as a rule. This becomes necessary to make sure that the party manifesto on the basis of which they have won the elections is implemented honestly.

Conscience votes are given on exceptional basis on non-political issues. They are usually quite rare. Very often they are about an issue which is very contentious, or a matter on which the members of any single party differ in their opinions, thus making it difficult for parties to formulate official policies. Usually, a conscience vote will be about religious, moral or ethical issues rather than about administrative, political or financial ones. Once conscience votes are allowed, parties do not exercise control over the votes of individual legislators. They can vote as their conscience dictates and even oppose their party position without consequence. These events are rare and are never on matters of confidence.

Issues such as the death penalty, the prohibition of alcohol, homosexual law, same sex marriage, and the legality of prostitution are often subject to conscience votes. Rules concerning protection of pregnancy or abortion have usually been subjected to a free vote. In such cases, a party declines to dictate an official party line to follow, and members may vote as they please. But there is more to it than that.

As an example, early this year, British Prime Minister Gordon Brown bowed to pressure from pro-life groups and Catholic Church leaders to allow a conscience vote on a bill that would allow human cloning. The British Parliament will vote on the Human Fertilisation and Embryology Bill sometime next month that allows the cloning of human-animal hybrids. The Bill is now in the committee stage at the House of Commons. The conscience votes will apply to three clauses, governing human admixed embryos, saviour siblings, and the need for a father during fertility treatment. If passed, the Bill would allow scientists to create human-animal hybrid embryos for 14 days. Anything other than a conscience vote on this issue would have been a travesty. It is a rare sort of issue that must always lay outside the simple notion of party political belief in broad principles.

At least in theory, this country is reconsidering so many issues about its constitutional laws and practices. To some Constituent Assembly members, many matters central to the political system and the major constitutional policies might look like issues of conscience (or abstention). One side might say something is a conscience issue for him to oppose. Another side might declare that for them, it is not conscience matter at all. As far as the concept is concerned, one cannot imagine a conscience vote on sending troops to war, or the nature of the federal system that Nepal needs, or the type of secularism that might satisfy the urge of the Nepali people.

Is anybody serious? If a political party is not to have a line on such political matters, what do political parties exist for at all?

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