A Modus Operandi of Constituent Assembly

May 4, 2006
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The international presence should continue through the election of the Constituent Assembly, the adoption of the constitution and the demobilisation of the rebel forces

Author
By Prof. Krishna Khanal

Why Constituent Assembly

The creation of a new constitution through an elected Constituent Assembly (CA) is highly desirable in Nepal for several reasons. First, in order to develop a feeling of ownership of state among the people, we need to make a new constitution with the direct participation of the people. Second, the present Nepali state, including the Westminster model of government, needs a thorough restructuring in terms of recognizing the socio-cultural diversity of the people and for their autonomy, identity and self-government. Third, the monarchy, particularly after the royal massacre of June 2001 in which King Birendra and his family were shot dead, is now in question. Although King Gyanendra had a smooth succession to the throne, both the legitimacy of and respect for the monarchy has eroded significantly. The election of CA, if people want it, may also provide an opportunity for the monarchy to regain its lost image and relevancy. Fourth, various ethnic and cultural groups are now raising voices for their right to self-determination. They consider that the present state is an imposition on them. Since, their demands for self-determination has no separatist or secessionist content, the CA can work as a forum where all the Nepalis can collectively exercise the right to determination in terms of choosing the form of state and the type of government. Lastly, the Maoists have also demanded election for the CA to frame a new constitution. This would be an ideal way to convince them to give up violence and lay down their arms.

Many questions are being raised in different political corners regarding the modus operandi of the constituent assembly in Nepal. The mainstream political parties frequently say that it should be based on the 1990 constitution. The Nepali Congress states that the decision to this effect should be taken by the Parliament and that, for this purpose, the House of Representatives (HOR) should be revived. The ruling parties, including the UML stress that the election of HOR and the Parliament should initiate the new constitution making process. The Maoists want a round table conference of all parties including representation of the King and civil society. However, more than the method we adopt, understanding among the major players is of crucial importance. In the current triangular conflict situation, Nepal needs to take time-framed steps towards resolving the conflict through Constituent Assembly. These steps may be stated as follows:

1. The First step in this regard is to make a joint declaration of principle commitment by all the major players, including the King, for a new constitution to be framed by the CA elected on the basis of adult franchise. This commitment may be first made unilaterally by each of the major players i.e. the king, mainstream political parties and the CPN (Maoists). Such a commitment is unavoidable if Nepal is serious about resolving the current crisis. There could be informal dialogues through intermediaries assuring each other of one’s commitment. Even if the Maoists do not respond favourably at the start, the state should offer its commitment nonetheless.

Since peace talks between the government and the Maoists have failed twice, there is a need to review the structure of dialogue, the government, as a party in dialogue, seemed to have several deficiencies. For one, it could not represent the state as a whole and so convince the rebels of its credibility. Therefore an all-party mechanism, as that of South Africa, may provide a more credible structure for resolution of the protracted Maoist insurgency.
2. Based on such commitments, the next step would be to declare a ceasefire between the state and the rebels.. The state can initiate this unilaterally, thus giving the rebels a chance to reciprocate. If the Maoists fail to reciprocate it, they will be exposed as having no faith in a peaceful resolution of the conflict. In that case, the state would have the higher moral ground and would be able to mobilize internal unity and international support to control the insurgency.

3. Nepal may need the supervision of the United Nations to monitor the ceasefire and keep an eye on the progress. This is necessary because mutual fear exists between different factions, and there is every possibility of breakdown of negotiations. The international supervision should be given a mandate to act decisively if either party violates the understating or the verdict of the people through the election for the CA. The international presence should continue through the election of the CA, the adoption of the constitution and the demobilisation of the rebel forces.

4. Since peace talks between the government and the Maoists have failed twice, there is a need to review the structure of dialogue, the government, as a party in dialogue, seemed to have several deficiencies. For one, it could not represent the state as a whole and so convince the rebels of its credibility. Therefore an all-party mechanism, as that of South Africa, may provide a more credible structure for resolution of the protracted Maoist insurgency.

5. The all-party mechanism may have two layers: a) a relatively large body that forms an informal assembly or a round table conference as the Maoists have suggested; b) a technical committee consisting of authorized party executives and a few experts. This body should be empowered for form an interim government, lay down the basic principles for the ultimate resolution of the conflict and build consensus on the guiding principles of the future constitution.

6. The guiding principles of the future constitution should include such universal principles of democracy as sovereignty of the people; fundamental rights and freedom of the people; periodic elections based on adult franchise; representative government; multi-party competitive politics; independent judiciary, local and regional autonomy; protection of rights, culture, language of ethnic and indigenous groups and people; proportional representation of social and cultural groups at all levels of political structures through political parties; and so on.

7. Consensus should be the basis of decision. In case a general consensus is not arrived at, the near consensus formula may be applied to resolve the deadlock in decision-making.

8. The election of the CA should be based on proportional representation. The electoral system should be devised to guarantee that social plurality i.e. of women, ethnic and indigenous people, Dalits and Madhesis, will be represented in proportion to their population size.

9. The assembly should remain open and accessible to all. It should also devise mechanism and processes allowing all sections of people, including civil society, to represent opinions and interests and participate in the constitution-making process. The drafting committee should take care of this.

(To be contd.)

A political scientist, prof. Khanal was in the forefront of `jana andolan’ 2006 and could be seen leading the peaceful movement at Kirtipur. His book, “Nepal’s discourses on Constituent Assembly,” was published by Friends for Peace, a Kathmandu-based civil society organization last year. The excerpts from the book have been reproduced here with the permission from the publisher. Please send your comments to [email protected] or [email protected]

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