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Category: Opinions
”Some politicians have been championing direct election of the prime minister as the parliamentary system has failed to give political stability”
A number of Nepali Congress politicians led by ideologue Narhari Acharya have been garnering support for changing Nepal’s existing parliamentary system into a hybrid political system which recommends direct election of the prime minister within the framework of a bicameral legislature.
The proposal has the support of political scientists like Professor Krishna Khanal and senior lawyer like Radheshyam Adhikari. Their argument is that the parliamentary system fashioned after the Westminster model has failed to give political stability to the nation, and that this is the best alternative.
Like many other countries, Nepal operates under a parliamentary system, where the executive prime minister runs the government, and the president as constitutional head of state, represents the nation. A member of the House of Representatives supported by a majority becomes prime minister. After an election, the head of the state nominates the prime minister based on his strength in the house. He is usually the chairman of the majority party which wins the election. The prime minister appoints his own cabinet; and they are all accountable, either individually or collectively, to the House of Representatives.
In other words, the administration of the country is conducted according to the wishes of the people as expressed through their representatives in parliament. While a number of changes have been made recently to fit these norms into the framework of the (unicameral) Constituent Assembly, the basic rule of the parliamentary system that the house elects the prime minister commanding its confidence still persists. No sooner is this confidence lost than the house initiates the process of forming another government.
Apparently, the system of directly elected prime minister is not a form of cabinet government, which a leading English essayist Walter Bagehot described, as a ‘hyphen’ that joins a buckle and fastens the executive and legislative organs of the state together. In this system (if it is a system at all), there is no fusion between the executive and the legislature, and the cabinet has no collective responsibility to the house. When there is a directly elected prime minister, he would no longer be chosen by parliament amid post-election coalition bargaining, but be directly elected by the population in a separate ballot. This proposal includes electoral reform which tries to synthesize both parliamentary and presidential systems of government, but it creates none because of its inherent weakness as a model, and lack of other constitutional parameters, which maintains the institutional parameters of the system.
The advocates of the system of direct election of the prime minister seem to be keen to cite Israel as a model. It is a poor model, though. Until the 1980s, Israel had almost the same model that Nepal had under the 1990 Constitution. It also provided for a powerful executive, headed by a prime minister formally regarded as first among equals but actually enjoying a powerful position in leading the government. In the late 1980s, when the stalemate created by small and medium-sized parties led to a situation of immobilization, the proposal of direct election of the prime minister was adopted, out of many reforms proposed since the establishment of Israel. This was an attempt to deal with the increasingly fragmented nature of the unicameral parliament, which for example, had 13 parties with six seats or less as a result of the 1988 elections.
The aim was to give, as Narhari Acharya and his associates have been arguing in the present case, more power to the prime minister by freeing the position of dependency upon the support of minor parties in parliament, which had previously been used to bring down governments over relatively trivial matters.
So far so good. In March 1992, the Knesset enacted a new basic law which provided Israel with the distinction of being the only country to have direct popular election of the prime minister. Israeli voters were asked to write two votes on the same ballot paper – one for a proportional party list for parliament and one for an individual. Parliament would continue to be chosen by a strict list system of proportional representation with the entire state serving as one constituency. An absolute majority of the vote was necessary to elect the prime minister in the first round; if that was not obtained, a second round would be held two weeks later in which only the two highest scoring candidates in the previous round participated.
The objective of strengthening the position of the prime minister by having separate elections was a failure. The 1992 reform was implemented first in the 1996 elections. In fact, three prime ministers were elected directly under this scheme. Of the first two, neither was able to complete a full term. The system was blamed for creating further fragmentation of the legislature and severe political instability in the country. Thus, in early 2001, the government enacted a new law and repealed direct election of the prime minister and restored general parliamentary elections.
Nepal has a long history as a parliamentary system. Some form of parliaments existed in the country during the last five decades. In particular, the1990 Constitution, based on the outstanding ability of all political forces, was able to take democracy to every household in far flung villages. Although, the country was not able to face external challenges, almost every adult knows the basics of the system after all these years- adult franchise, formation of the government, coalition process, ministerial responsibility, no confidence motion, and the role of public institutions. For most of the people, democracy means parliamentary democracy, and nothing else. It is already rooted in the conscience of the people.
By now the people of Nepal know how the parliamentary system operates, and how governments come and go. The greatest advantage of the parliamentary system is that most of the politically active people know where the shoe pinches, and what should be on the agenda of constitutional reform, to fix the shoe and make it smooth. There is no reason why they should be offered something that will require another fifty years of experimentation.
One cannot, of course, legislate for a sense of belonging. Moreover, let’s not minimize the fact that the parliamentary system is better able to give space to diversity, social inclusion and multiple leadership than any other alternative before the nation. There are political considerations everywhere, but there must be an impulse to do right, because it is right.
lawyers_inc_nepal@yahoo.com
”Points to ponder as the Committee on Fundamental Rights discusses what rights should be inserted in the new constitution”
A Boston-based group Gay and Lesbian Advocates and Defenders announced their “Six by Twelve” campaign on the fifth anniversary of the Massachusetts court ruling that legalised gay marriage, the first state in the United States to do so.
The group has also had success in Connecticut where after a state Supreme Court ruling, the first same-sex weddings took place in November 2008. A state Supreme Court ruling in California in May 2008 also allowed gay marriage, and an estimated 18,000 gay and lesbian couples took advantage of their new rights. The group plans achieving marriage equality throughout New England (meaning the northeastern region of the United States consisting of Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire and Maine) by 2012.
The issue of marriage equality as one of the fundamental rights is being debated in Nepal too. A gay activist, Sunil Babu Panta, is now a member of the Constituent Assembly (CA), which is working to draft a new constitution, and is on the frontline of the Fundamental Rights and Directive Principles Committee. This committee will determine the types of fundamental rights to be incorporated in the new constitution, grounds of (reasonable) restrictions on their (unfettered) exercise, required implementation arrangements, directive principles and policies of the state, special protection regime for certain communities and groups, provisions on citizenship and other related issues.
The committee is already considering creation of six sub-committees, which will do their specialised work on each such issue contributing to the committee-level report. This report will be presented before the plenary meeting of the CA possibly in the next two and a half months. It will provide the basic principles on the basis of which the Constitutional Committee will have to draft the new constitution’s chapters on fundamental rights and directive principles.
In this exercise, the committees not only face a challenge in responding to advocacy groups but also performing a balancing role, which is the most crucial aspect of their business. In case of gay marriage, Nepal’s Supreme Court has already ordered the government to scrap laws that discriminate against homosexuals, and formulate new laws rectifying ongoing discrimination against sexual minorities.
A very unconventional issue in a traditionally conservative society, this issue will need the cooperation of 16 revolutionary Maoist members on one extreme and five Madhesi members on the other to get included in the new constitution’s chapter on fundamental rights as guaranteed basic rights.
The position of the other 21 members from different parties is also not clear in this committee of 43 constitution makers. In such a scenario, a lone gay member will certainly have a tough time in the days ahead convincing this diverse group that they should leave behind the cry-baby phase and come of age in this matter. It is not an easy job, however.
There are other human rights issues affecting a significant part of the national population. When this author led a discussion in the Committee on Fundamental Rights and Directive Principles at its eighth meeting recently, he had a feeling that the committee would face enormous challenges in identifying new human rights to be incorporated in the new constitution as fundamental rights.
There has been much discussion in the country about the rights of indigenous people, Dalits, Madhesis, women and other minorities. One must also not forget minorities like Muslims who were very adamant in making sure that the word Muslim appeared explicitly in some key provisions of the Constituent Assembly Rules adopted on Nov. 16, 2008. The rights that concern them have to be defined with clear meaning and magnitude vis-à-vis each other.
There is often a tendency to forget the remedial aspects of fundamental rights and economic and other infrastructural issues. A number of fundamental rights in the present Interim Constitution (for example, the right to employment and social security) remain as mere symbols because the constitution makers had little strategic thought about how to define them in the text, and make sure that there were explicit remedies if the rights were ever invoked.
If there are no remedies, it doesn’t make much sense to guarantee any fundamental right. Efforts in this area necessarily involve an objective understanding of the capacity of the state to deliver. The problem is not just theoretical regarding most rights that deal with bread, butter and shelter. It is yet to be seen how the committee mentors would be able to convince some members out there that they are not always right when they say human rights have class consciousness, and rights are just collective, social, relative and substantive rather than individual, absolute and procedural. This author has faced this issue recurrently in recent months in his dealings with members of the CA.
The list of human rights in the Interim Constitution needs some new entries, which must be carefully crafted. The right to good government is one such example. The right of every person to be heard, before any individual measure which would affect him or her adversely is taken, has become a must. Others could be the rights of the elderly to lead a life of dignity and independence, and to participate in social and cultural life; and the rights of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.
Instead of going for a blanket provision guaranteeing the right to employment, which may not be feasible at this stage of Nepal’s development, the committee members can consider ensuring everyone the right of access to a free placement service in the new constitution. Similarly, the right of access to preventative health care and the right to benefit from medical treatment under specific conditions would do well instead of providing general rights to health with “catch-all” phrases. As to social security, some important protection cases such as maternity, industrial accidents, dependency or old age and the right to social and housing loans could also be covered.
State-sponsored retirement schemes (like provident fund, pension and so forth) for labourers in the unorganized sector based on their own monthly contributions could be a life-saving guarantee for the poor people of this country. This is something that can provide significant moral contents to the constitutional system.
Human dignity and worth precede the constitution. But the fundamental rights meant to uphold them must have adequate constitutional sanctions. The role of some informed members of the committee like Ramesh Lekhak, Pradip Kumar Gyawali and Sunil Babu Panta is going to be very important in the deliberations of the committee. The on-the-ground legal experts that have been put at the disposal of the committee also have a very meaningful role as their facilitators.
lawyers_inc_nepal@yahoo.com
”None of the parties in the CA seems to be interested in getting things rolling”
Nepal’s Constituent Assembly (CA) is in its eighth month of existence. Even after this long period of inactivity, it appears none of the major political parties in the CA is much interested in speeding up the task of writing the constitution. The question is: why has the euphoria of having a new democratic constitution disappeared like this?
The election of the chairpersons of the 14 committees in the CA that will be writing the constitution is scheduled to take place on Jan. 9. The CA formed these committees in mid-December based on the nominations submitted by the political parties represented in the assembly. Although these committees have been discussing how to get their work started without losing further time, they have been forced to wait another 25 days for the election of their chiefs. A meeting of the CA Steering Committee decided to postpone the election formerly slated for Dec. 31 by nine days. All these committees including the Constitutional Committee, which has the responsibility drafting the constitution, are behind the declared work schedule.
By now everybody knows the central purpose of the CA — striking a bargain among the various groups represented in the House — is so difficult. Some of these groups do not have any commitment whatsoever to this country. There are demands whose contours are not so clear. Similarly, there is a big gap between what the major political parties have been saying and what they actually mean. They are not equally committed to a successful outcome, and all of them define success differently. Indeed, this scenario makes negotiations for a new constitution difficult. On top of that, critics think the country is not in safe hands even now. The attack on the freedom of press is not an isolated example.
Writing a new constitution is a challenge. The CA has not been able to serve as a place for dialogue and understanding. Decisions reached outside the CA are generally rubber stamped after calling the House and with little debate. The overriding challenge is to come up with a common understanding of the political system that the major parties wish to build. As time is running out, the deep fault lines in constitutional politics have been laid bare and even deepened.
The four main actors in constitutional bargaining — the revolutionary Maoists, the not-so-sure UML, the conservative Congress and the ambitious MJF — have very different goals that have already made bargaining quite difficult. The coalition government does not have any coalition in its spirit and programmes. It is all about how to promote one’s agenda from a position of power. All these actors are able to disrupt the work of the CA or organize protests against any part of constitution they do not like.
With regard to issues like empowerment, drawing of ethnic territories, autonomy and federalism, it will be very difficult to design a constitutional arrangement that will satisfy all parties. The writers, no matter how skilled they are, will have trouble developing bargains that will endure.
Considering the rebellious political leadership, it is not clear how the constitution makers are going to define the fundamental rights and freedoms of the citizens of this country. For example, settling the issue of the right to property in the new constitution vis-a-vis promises of land redistribution to the tillers and landless people is crucial for many stakeholders. This will also more or less give a picture of property ownership rights in the “New Nepal” and the possibilities of speedy investment in its development sectors.
Constitutional recognition alone is not a sufficient condition for a legal regime of robust property rights. But the new constitution is expected to reveal what a good property regime would be. This is not to question the property-affirming yet progressive aspects of the right to property (that one can see in the constitutions of Germany and South Africa, for example) but the stand-off that may emerge in the prevailing environment.
There are other out of sight issues. Reaching a bargain among the parties would apparently be much easier if it was restricted to the level of symbols and constitutional formulas that would make everybody feel that their past grievances had been acknowledged. But much more than symbols and history are at issue here. The 12-point understanding signed in 2006 in Delhi between the Maoists and the agitating parties with the support of Indian security agencies had a specific purpose. It would be foolish to conclude that the purpose has been fulfilled and that everything behind the instability is now over.
lawyers_inc_nepal@yahoo.com
”When the country is passing through difficult times, the rulers should be sincere”
Can Maoist Chairman Pushpa Kamal Dahal, who spearheaded the republican movement, dethroned the king and established himself as prime minister keep the new republic intact? If yes, why has he threatened to pull out of government? If not, what was the logic behind the bloody people’s war?
There are many people who ask if the prime minister can step down without accomplishing his mission. Has the prime minister threatened to quit because he is not sure what to do next after taking the reins of government? The people are profoundly worried about the state of the state. The country is feeling dejected even though many loktantrik achievements have been made and revolutionary parties have joined the government.
The current situation reminds one of what a leading historian Ludwig Stiller described as the pain, agonies and frustration of the people of Nepal in his 1976 book The Silent Cry: The People of Nepal 1816-1839. Of course, the cry that he has described was related to the Treaty of Sugauli signed in 1816 and its impact. The treaty had a traumatic effect on the common people. Nepal had lost a war with the British East India Company, and consequently all its territories west of the Mahakali River and between the Mechi and the Tista in the east.
Nepal is in a similar situation now. The people expect the prime minister to understand “the silent cry” of the common masses. When the country is passing through difficult times and searching for new goals, the rulers should be sincere.
As Stiller has pointed out in his book, “It was the situation and state of affairs in village Nepal that in themselves constituted the cry, the hundreds and hundreds of little problems that came up with persistent regularity and for which there was no redress inside the system. All was not well with village Nepal, and it was this situation demanding correction and redress that constituted the silent cry.” The cry of village Nepal is still echoing around us. The modalities have changed and the content has changed, but the cry is still there. Will it be heard any more clearly today than it was during the silent years?
This is the choice left to the rulers. In the immediate aftermath of the Treaty of Sugauli, Prime Minister Bhimsen Thapa was supposed to play a very crucial role to defend the interests of the common people. His inability to respond to the situation and his death in 1839 led to frequent alarms, unrest, changes in ministries and increasing tension in the court of Nepal. In the process, nobody could avoid what came to be known as the Kot Massacre on Sept. 14, 1846 and the rise of Jung Bahadur Kunwar. The rest is history.
The prime minister cannot evade responsibility by saying that the Nepali Congress has not been cooperative. He cannot penalize the country for his inability to give a popular government that the people deserve. It only means that the changes that he pushed through on the strength of arms were either not well thought out or were far from popular wishes. In that case, doesn’t it mean that the country should go back to Prime Minister Sher Bahadur Deuba’s time in early 2002 when he wanted to hold elections to the House of Representatives to hand over power to a new government, and the Maoists threatened it with dire consequences if the polls were not cancelled?
This is the reason why the rule of law and democratic order remain irreparably damaged. How can the prime minister escape from his responsibility? He has to make good on his promises to the people of this country. There is no other avenue left for him. It was his choice to demand a Constituent Assembly (CA), which was not at all necessary to sort out the country’s problems. Since the CA is an irreversible fact now, he cannot leave it in limbo and relax in peace.
It is not necessary to keep the Congress on board for everything the prime minister wants to do. He can make decisions which he should do regardless of whatever the Congress thinks at this stage. This is the first time in the post-2007 political history of Nepal that the government can make a decision and render Congress insignificant to this extent.
Thanks to the revolutionary Girija Prasad Koirala, the new regime can draft a constitution of its choice and get it passed by the required two-thirds majority even if the Nepali Congress abstains during the voting, walks out in protest or commits suicide. It is an opportunity for any ambitious government. Why should the prime minister then want to have the insignificant Nepali Congress by his side?
The history of ideas is replete with great liberating slogans slowly turning into suffocating straitjackets. The Congress is having a bitter taste of it. It should be allowed to feel how irrelevant it has become. But even if the Congress has become scrap, it still has a role that only it can perform. To the extent that the prime minister’s decisions demand scrutiny, there should be enough space for people who disagree, and somebody must pick up the banner for the other side.
If the prime minister can understand amid the silent cry, he too should appreciate the need for a strong opposition to shoulder his responsibility from outside. It is better for this country for the Congress to be out if the Maoists are in and vice versa. After all, the effort to strike a consensus government was an effort to silence Nepal and its political institutions. Nobody should allow this to happen. The CA has become all the more important for everybody.
lawyers_inc_nepal@yahoo.com
Populism in constitution making is not a new phenomenon. Hardly any systematic study exists in this area. But this phenomenon exists, and exists in the most powerful sense. Nepal is definitely going through this process.
The latest case in point is Ecuador. A very unstable South American country, it has adopted a new democratic constitution just recently. In a way, enacting a new constitution is no more a very important occasion in this country. Independent since 1822, Ecuador already has a history of enacting 19 constitutions — and mourning the untimely demise of all, one after another. Its score is better than that of some other countries in Latin America. For example, the Dominican Republic has recorded 34 constitutions, Venezuela 26 and Haiti 24. There is no guarantee that this new constitution will not face the same fate for the same reasons.
Bolivia is also following suit. Its congress has recently agreed to send a new constitution backed by President Evo Morales to a national referendum on January 25. Drafted by an elected constituent assembly, the constitution is supposed to solve all the problems of Bolivia. Independent since 1825, this country is the fifth country in Latin America with a competitive score in constitution making. Its 1967 constitution was revised in 1994, 1995, 2002, 2004 and 2005 — each time for the purpose of achieving major reforms, but always failing. Morales, Bolivia’s first indigenous president, maintains that only this new constitution will give more political power to the country’s downtrodden native (Indian) majority and entrench his leftist economic reforms. Again, there is no guarantee that this new constitution will not go the way of its predecessors.
Myanmar is set to be a new case in point. The democratic thrust of the people of this beautiful country is not a new issue. But the international pressure that is being exerted now is not for a democratic regime, but for a change in the balance of power in view of its strategic importance. Local causes have little significance. In response to the pressure, Myanmar’s ruling junta has not only drafted a new constitution for Myanmar, but also issued its English version last week. But the constitution still intends to perpetuate military involvement in politics. Again, it is because of the reluctance of the historical partners of Myanmar to leave it alone that this country is still in turmoil.
Drafted under the junta’s influence, it guarantees 25 percent of the parliamentary seats to the military and allows the president to hand over all power to the military’s commander in chief in a state of emergency. Going beyond, it also stipulates that no amendments can be made to it without the consent of more than 75 percent of the lawmakers, making any proposed changes unlikely unless supported by the military. The constitution, passed by a national referendum in May, allegedly received the backing of 92.48 percent of the voters.
However, the constitution will come into force only after parliament convenes following the general elections scheduled for 2010. As such, critics say the constitution is designed to maintain the military’s decades-old grip on power. Indeed, it does so, but again for certain foreign interests. There are more than a dozen African countries like Sudan and Somalia exhibiting a similar pattern.
This Nov. 8, Nepal would have celebrated the 17th anniversary of the 1990 constitution and its democratic credentials had the then Prime Minister Girija Prasad Koirala and his intriguing partners not agreed to glorify violence and accept the plea of external elements to pull this constitution down. A new democratic constitution seems to be a distant dream. Many of the formulations of the 1990 constitution were better than the existing constitutional rules and traditions practiced at Westminster or No. 10 Downing Street, the office of the British prime minister.
In fact, the United Kingdom, the mother of parliamentary democracy, is still grappling with major issues of policy reform in devolving power from the executive to the legislative, which include the power of the executive to declare war, to request the dissolution of parliament, to recall parliament, to ratify international treaties without involving parliament; to make key public appointments without effective scrutiny, to restrict parliamentary oversight of the country’s intelligence services, to choose bishops, to appoint judges, to direct prosecutors in individual criminal cases, to order the civil service and to determine the rules governing entitlement to a passport and the granting of pardons.
Moreover, they are the 12-point reform agenda of British Prime Minister Gordon Brown, which was published in the U.K. Chamber’s Hansard recently. In most of these areas, the 1990 constitution of Nepal had made a remarkable breakthrough in holding power more accountable and upholding and enhancing the rights and responsibilities of the citizen.
None of the four constitutions promulgated in Nepal one after another was allowed to operate and grow smoothly based on the brilliance of its people. Each of them had been scuttled because it had outlived its utility for somebody. As long as there are such factors causing instability in local politics and politicians willing to become their tools, constitutions come and go — they don’t reflect the sovereignty of the people or the popular will.
Again, no matter what is written in the constitution, what matters most is the mindset of politicians and their commitment. Without this, a constitution is just a scrap of paper even if it has popular legitimacy. Populism does not help anybody in the long run. There is a need to pump some seriousness into the constitution-making process.
lawyers_inc_nepal@yahoo.com
It is already about five months that the first meeting of the Constituent Assembly (CA), on 28 May 2008, to abolish monarchy and declare the country a republic, was held. The Assembly is functionally without job since then.
There does not seem to be any hurry among the partners of New Nepal to move further. It appears as though their only job was to root out the indigenous monarchy from the land and proclaim a republic. The Rules of Procedures to be applied to the Assembly in drafting the new constitution remains stuck at the Rules of Procedure Drafting Committee. The Assembly cannot move without it. The resultant inertia has become a good instrument to let off steam. From the little that this author has found so far, the ruling coalition is still without any time plan for the Assembly’s constitution making business. It is not because there are far too many dull men in grey suits, who cannot plan anything, but because their leaders think their jobs are better done elsewhere.
Moreover, there have been little credible assurances from the Prime Minister and his senior cabinet colleagues that the CA will start its business within a few days. All recent cabinet meetings have been concluded without a single word about the bottlenecks before the Assembly, and the efforts of the government, if any, to remove them. Rebellion has been transferred into angst.
This lack of eagerness of the ruling coalition to begin the constitution making agenda, and the grand acquiescence of this delay by the Nepali Congress — theoretically, the main opposition in the CA — have not surprised anybody. Civil society leaders who supported the Maoist movement until last year have not found it worth their while to kick up a fuss about this issue. The so called independent media of Nepal, which is better known for its value judgment than for objective reporting, does not have any position on this matter. Their appetite for democracy remains minimal.
In fact, the champions of the CA have all disappeared from the strip. The Nepalese versions of American founding fathers — George Washington, John Adams, Thomas Jefferson, and others such as James Madison, Alexander Hamilton, Benjamin Franklin, John Jay — are all conspicuously absent from the political scene. There is no more pressure for a new Constitution. The West remains optimistic, but on slender grounds.
In summary, this is the Alice in Wonderland world of CA. This is definitely a reflection of the system in crisis. This crisis may get prolonged given the poor performance of the opposition in the Assembly. It is the function of the opposition to take the critical lead in holding the government accountable for its actions and inactions, and policies and proposals. It has to be able to review the situation and comment on them independently when necessary. Apparently, the opposition is as extraordinarily shortsighted as the other stakeholders. It is not the time to only focus on governance issues at the expense of constitution making.
As the main opposition party, the Nepali Congress has the right to be offered the first and most extensive opportunity to know what is happening out there. One could think of the official opposition advocating a new set of policies which are significantly different from those of the government, which try to maintain democratic credentials of the proposed system, and contest the government formulations based on established standards. It has not even been able to ask the government to explain this enforced immobility of the Assembly.
In any case, the power and ability of the Nepali Congress to perform this role effectively is open to question. As one can see, not only does the Congress face fragmentation within its rank and file, its public support is now much slimmer than it was in the past because of vanishing support of conservative democrats and ‘BP-ite’ nationalists. Girija Prasad Koirala’s steady and gradual parting with Nepali Congress’ foundational values, including the principle of national reconciliation, and his movement away from maintaining an independent foreign policy for Nepal, have caused many interest groups, lobbying and advocacy organizations, and research institutes to walk away from the Congress banner in search of other dependable democratic and nationalist outlets. This has definitely weakened the capacity to guard the constitution making process.
Other smaller parties may also find it increasingly difficult to make sure that Nepal adopts a democratic constitution that satisfies the thirst of the common people. Two factors are important: the importance of ‘behind the scenes’ contact with the government and discussion in committees, which is usually more effective for the opposition than debate on the floor. Both could be especially useful prior to the first reading, ensuring that opposition views are taken into account from the outset.
The CA is not a workout in the ‘Wonderland.’ It is often difficult to decide what is in the national interest if there is no transparent debate on important constitutional matters. It might, in any case, be best served by continuing to put forward an alternative view on every position. Several decisions have been taken in the past to evade these debates and deprive people from exercising their franchise. The choice is not always simply between national and party interest — sometimes they need to look upon important international issues as well. After all, it is the proxy forces that have been making history in Nepal, and there does not seem to be any change this time around as well.
There are deep forces at work: social, cultural and political identities have become fluid as old political ideologies are replaced by a web of ethnic, religious and demographic distinctions between people. Their democratic management is certainly essential. But the revolutionary arrangements that are being negotiated behind the curtains are keeping the CA inert and do not have any link with the demands of the people.
lawyers_inc_nepal@yahoo.com
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.
lawyers_inc_nepal@yahoo.com
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?
[lawyers_inc_nepal@yahoo.com]
Nepal has been declared a federal state by the Interim Constitution. Although this does not establish ethnicity as the fundamental principle of the federal system of government that Nepal is going to adopt, there is a strong possibility that ethnicity will be taken as a major criterion in the formulation of the Nepali scheme of federalism. The opinion being floated from different established corners in the country does not give any better indication.
The issue of federalism in several developing countries has often been one for polemic rather than reasoned analysis. This is what is happening in Nepal as well. The lack of congruence between past and present in Nepal—as well as rivalry between competing contemporary federal visions and neighborhood interests—are likely to be brought into play during the conceptualization and implementation of federalism by the Constituent Assembly. It is yet to be seen whether this empowers the people who deserve empowerment, or gives way to those quarters that should not have any voice in Nepal’s political process.
A key problem in this regard is the lack of seriousness on the part of the politicians and party-sponsored activists as to what they want out of federalism. So far there is complete absence of mechanisms for dealing with a multitude of conflicting federal visions competing for the same areas. Except the three political districts in the Kathmandu valley, the nation as a whole has no clue as to what is federalism; and if this is what they want as a gift from the so-called ‘New Nepal.’ On top of this, even if public opinion should crystallize around one particular vision, the current establishment and its loyal opposition do not have strong willingness to prevent others mounting new challenges against it. The danger is that situations like these could create further chaos and chronic administrative instability.
The issue here is the initial Maoist proposal for federalizing Nepal by creating eight states—Khasan, Tharuwan, Magart, Tamuwan, Tamang, Newa, Kirat and Madhesh—which got a further twist when the CPN-Maoist unveiled their election manifesto in early March 2008. This manifesto further proposed to restructure the unitary state into 11 autonomous federal states and two other sub-states within them keeping in mind what they described as the country’s “ethnic composition, geographical contiguity, linguistic base and economic viability.”
The Maoist manifesto proposed a three-tier state structure — centre, autonomous federal states and local bodies — with specific rights and responsibility among them, but essentially clinging to their strong ethnic territoriality. They have proposed Seti-Mahakali and Bheri-Karnali federal states based on their geographical appropriateness while the rest — Magarat, Tharuwan, Tamuwan, Newa:, Tamsaling, Kirat, Limbuwan, Kochila and Madhes — have been based on ethnicity. Within the Madhes autonomous state, three sub-states — Mithila, Bhojpura and Awadh — have also been proposed on linguistic basis. The Maoists have also reiterated that every autonomous state will have the right to self-determination.
In this scheme of federalism, the only ethnic territory that has not been given its proper name is Khasan. The party has not explained so far why the state of Khasan has been dropped from their original scheme, and why Seti-Mahakali and Bheri-Karnali federal states have been created in its place giving new name to this territory. The identity of Khasan (the abode of Khas people) is no less historical and real than the rest of the other Nepali communities. They are indigenous to the land; and are the principal inhabitant of their region from time immemorial. If ethnic identity is to be stimulated as a political criterion, then there is no reason why the Khas community—which is one of the major ethnic groups of the country—should be knocked down this way from Nepal’s political map.
It is not necessary to refer to the written history of Nepal, and their general role in the nation building. If one is to go by Mahabharata epic—something written before the three thousand years before the birth of Jesus —note that Khasas (including Kirants) have fought war even with Krishna, Karna, Yudhistira and many rulers of the South Asian plains to safeguard the independence and sovereignty of their land.
For a Khas, whether one is a so-called Bahun or a ‘sanojat,’ the whole of Nepal is his or her home, and there is no ethnic loyalty to any particular piece of land inside the country. They don’t say this is ours and that is yours. This is how they have lived in this land since antiquity. They live everywhere; they have equal dedication and concerns for the whole country. They do not want to see the country divided into ethnic line.
Additionally, for Khasas, Nepal is too heterogeneous for ethnic federalism to work. While devolution of power to the territories which require this for empowerment and economic development is fine and must be pursued with urgency, federalising the country along the ethnic criteria is definitely a torturous move, which might weaken this land and all Nepalis commitment for it. This does not mean that they do not have an ethnic territory; and do not mind losing it.
This author has always emphasized that Nepal needs devolution of power to the territories—ethnic or geographical—in an objective basis. Federalism is not necessarily the major issue here. Devolution of power is the answer where power needs to be transferred from a superior governmental body (such as central power) to an inferior one (such as at regional level). A genuine desire for devolution can enable different approaches to government and policy-making to develop Nepal without breaking the country into pieces, and opening up processes which could be misused in the present situation.
In the United Kingdom too, devolution became one of the key issues in the build up to the 1997 election to the House of Representatives when Labour Party promised this issue as one of its manifesto pledges and to introduce a devolved form of government for Wales, Sctoland and Northern Ireland. True to this commitment, since 1998, the constitutional structure of the United Kingdom has undergone dramatic changes.
These changes essentially involved the setting up of an elected regional assembly whose powers were carefully and clearly defined by the national government. These powers did not usually include major financial powers such as tax collection, the raising of taxes etc (though the Scottish Parliament has minor tax raising powers), the control of the armed forces or an input into foreign policy decisions. Such issues continue to be controlled by the central government.
For example, Scotland has a Parliament now elected every four years on the Additional Member System of proportional representation. The National Assembly for Wales is also elected by the Additional Member System of proportional representation. It does not have the power to make primary legislation, but enjoys extensive executive powers and may make secondary legislation.
The Belfast Agreement reached in Northern Ireland in April 1998, was approved in a referendum the following month, and also opened the avenues for devolution. One of the new institutions created following this agreement was an elected Assembly with a similar range of legislative and executive powers to the Scottish Parliament.
What has emerged from the long tidal flows of devolution—from the 1998 onwards—is a uniquely rich, open and outward looking culture and a distinctive set of values which influence British institutions. Already one can see—from the new Regional Development Agencies bringing jobs and investment to each region, to greater local powers over housing, health, skills and transport —there is a real and growing devolution of power away from Whitehall and down to individual regions and communities.
There is a pressure to do even more to move away from the old Britain weakened by decades of ‘Whitehall knows best’, towards a new Britain strengthened by local centers of energy, initiative, dynamism and decision-making. It is a process that goes on without creating havoc.
Sometimes people forget this is devolution; it is not a form of federalism. The essence of devolution is not to be found in a particular set of broken pieces but in the institutionalization of particular relationships among the participants of political life. Nepal is capable of doing this without hurting anybody. Should this country not plan something like this without being too introvert?
lawyers_inc_nepal@yahoo.com