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Constitution Making in Nepal
What is a Constituent Assembly?A Constituent Assembly is a body set up to represent the nation and make a new constitution (or revise an old constitution). How does it work? A Constituent Assembly must discuss proposals for the new Constitution in great detail, work with lawyers specialised in constitution, as well as other people with relevant expertise, like political scientists and economists, and also with legal drafting experts (lawyers whose job it is to put ideas into legal language). Constituent assemblies have sometimes been very like a Parliament; in fact sometimes a nation's parliament has acted as its Constituent Assembly (like South Africa), or the Constituent Assembly has had the functions of Parliament also (like India). Generally a Constituent Assembly should work a bit differently from Parliament. Parliament represents the people, has to watch over the work of government and hold the government accountable to the people; and is usually dominated by political parties. The Constituent Assembly exists only to make the constitution, and that task should involve the whole nation. There should be an opportunity for individuals and civil society organizations to make submissions to the Constituent Assembly. In some countries a public body (perhaps called a Constitution Commission) has informed the public about the issues to be decided, collected public views, and put proposals to the Constituent Assembly based on the public views. We are not sure whether anything like this will happen in Nepal. There is supposed to be a High Level Commission in State Restructuring . We do not know whether this will be set up - or set up in time to do useful work before the Constituent Assembly meets. We do not know what its terms of reference will be - what "State restructuring" will mean for this Commission. And we do not know whether it will be required to consult the public. If there is no other body to consult the people, the opportunity for the people to give their suggestions to the Constituent Assembly will be very important. The members of the Constituent Assembly will have a heavy responsibility to ensure that its decisions are made in the national interest, not controlled by government or parties or commercial or other interests. The Constituent Assembly must have rules about decision making (click here for a Powerpoint presentation on this topic). These should try to create an atmosphere of constructive discussion, and provide for decision making by voting only after consensus cannot be reached. The rules must be carefully thought through, so that decisions made can command the support of the nation, and a small group cannot prevent decision making for no good reason. The Constituent Assembly will almost certainly do a lot of detailed work through committees, but the final decision should be made by the whole Assembly. Even if most of the members of the Nepal Constituent Assembly will come in through parties, the parties ought to be prepared to allow free discussion, and not impose strict party discipline as they would in Parliament. Very little has been decided so far about how the Constituent Assembly will operate. You can click here for some discussion of this topic. This was also a topic at the first CASU Conference in March 2007 - see the Report of that conference. Who should be members of the Constituent Assembly? The US Constitution was made by 55 men (no women), and the Indian Constituent Assembly had under 200 members. However, in Nepal a decision has been made to have 497 members. The method of choosing its members need not be the same as for parliament. Some interests are not well represented by political parties. Not all party people will fully understand the matters to be decided by the Constituent Assembly. And some people who would make a wonderful contribution to making a constitution will not be party people, or would not like to be nominated by a party. Some members should represent the interests of women, of dalits, of Madhesis of janjatis, of professions and occupations like farming, of religious groups and so on. The Interim Constitution now provides, however, that almost all the members will come through parties. There will be 240 members elected to sit for geographical constituencies (rather like the system used previously to elect members of the House of Representatives). And there will be 240 members elected through a system under which voters vote for parties - and the parties will have proposed lists of people from whom their ultimate members will be chosen. Each party will get enough of these 240 seats to reflect the percentage of voters they received from the voters. Each voter will have 2 votes - one for the individual constituency member, and one for a party list. For more information on this election system please click here. There will also be 17 other members chosen by the Council of Ministers, on the basis of their eminence in society. This is a good idea, because these may be the very people who would not be able or would not want to come in through parties. Nepal is not the only country to have a Constituent Assembly. You can read about constitution making in other countries here, and read about the current Constituent Assembly in Bolivia here. |
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