Consensus in Just Three - Alliance for Social Dialogue

Although there have been discussions on the reports prepared by the ten thematic and the Constitutional Committee of the Constituent Assembly (CA), the constitution-drafting process has not been proceeding ahead. Despite extensive debate in the CA meeting, the main reason for this halt in the drafting process is that all the reports of the thematic committees have not been endorsed by the CA in order to take them to the Constitutional Committee. All the differences that the political parties had while preparing the report in the committees of the CA were clearly visible in the meeting of the CA as well. The CA could not endorse the reports because the parties only debated but never reached a consensus. As a result, the committee reports could not come to the CA. In spite of a number of differences, the political parties came to a consensus in sending the reports prepared by the Committee on Natural Resources, Financial Rights and Revenue Sharing, the Committee for Determining the Structure of Constitutional Bodies, and the Committee on the Protection of the Rights of Minorities and Marginalised Communities, to the Constitutional Committee. The role played by the Special Committee for Studying Reports for building the inter-party consensus is substantial.

There is a provision in the clause 82, sub-clause 9 of the Constituent Assembly Regulations 2008 that any suggestions or directions from the Assembly after the Assembly discussions on the report concerning the preliminary draft containing the concept paper presented by the constitutional and thematic committees should be endorsed by the Assembly and then forwarded to the Constitutional Committee. Based on this provision, the CA had formed the Committee for Studying Reports to prepare reports and suggestions that the CA should give to the Constitutional Committee, integrating the concept papers and preliminary drafts through clause 89 of the Constituent Assembly Regulations 2008. There were 15 members in the committee formed by the twenty-ninth meeting of the CA held on May 27, 2009: Agni Prasad Kharel (Coordinator), Aatmaram Prasad Shah, Ekraj Bhandari, Narayan Khadka, Prakash Chandra Lohani, Pratibha Rana, Prem Bahadur Singh, Barsha Man Pun Ananta, Yubaraj Karki, Radheshyam Adhikari, Laxman Lal Karna, Bishwabhakta Dulal, Brijesh Kumar Gupta, Sarita Giri, Sunil Prajapati.
The main function of this Committee is to study the concept papers and preliminary drafts presented by the thematic and constitutional committees and to give necessary suggestions to the Chairperson about them. To make the work of the committee effective, the following work areas were assigned:

Committee’s Work Area

To study all the concept papers and preliminary reports presented by the thematic and constitutional committees
To make a note of all the issues raised in the CA over all the reports
To identify repeated and conflicting issues and points on reports of more than one committee
To identify any point that might have been missed in the committees’ reports
To suggest the Honourable Speaker about any modifications in committees’ reports based on Assembly discussions and answers given by the Honourable Chairperson.
To present a report to the Honourable Chairperson if there are any issues that the Constitutional Committee should focus on after integrating the drafts of all the committees

After studying for eight months, on February 3, 2010, a report, including the suggestions and directions to the Constitutional Committee, over the report of the Committee on Natural Resources, Financial Rights and Revenue Sharing was submitted to the Honourable Chairperson. Similarly, the Study Committee presented another report to the Chairperson, including suggestions and directions to the Constitutional Committee, over the report of the Committee for Determining the Structure of Constitutional Bodies on March 2, 2010; and over the report of the Committee on the Protection of the Rights of Minorities and Marginalised Communities on March 28, 2010.

The Study Committee on the report of the Committee for Determining the Structure of Constitutional Bodies

The Study Committee concluded on the report of the Committee for Determining the Structure of Constitutional Bodies that as the form of the to-be Nepali government has been decided to be federal, there is a need of a financial commission which works for the conservation, preservation and distribution of the natural resources and biodiversity, and fair distribution of financial resources. However, the Study Committee concluded that the necessity, formation, work, responsibilities and rights of the commission should be clarified. The study also pointed out that despite the Constitutional Committee being there to devise the preamble of the constitution; the Committee for Determining the Structure of Constitutional Bodies has also formulated a preamble.
Similarly, the Committee has also clarified on the issues on which the parties could not reach a consensus in the discussions at the CA. According to the Committee, the following are the points in which no consensus was reached upon:

Accommodating the rest of the 11 commissions as proposed in the Committee’s report, except the existing 5, in the umbrella body of the existing Nepal Human Rights Commission (NHRC); and including the work, responsibilities and rights of the new commissions within the NHRC; or establishing a separate federal commission with all jurisdiction; or forming Human Rights and Gender Commission with all jurisdiction.
The commissions proposed by the Committee to remain and other various commissions to be added upon.
The issue of whether or not to include the phrase ‘Nepal Federal … Commission’ in the name of the proposed commissions as each commission should be established in all the federal states.
The matter of keeping a gender-neutral word in the report rather than the word ‘Rastrapati’ (president). [Note: pati literally means husband in Nepali]
The concern that the expenses of the constitutional commissions should be made from the reserve fund.
The report included the question of whether the president, on the recommendation of the Constitutional Council, would appoint the officials of the Constitutional Commissions or the alternate provision of hearing in the parliament if appointed by the executive head discussions for and against this provision were presented.
All the commissions should not have equal number of members; rather, the number should be based on the nature of work, workload and necessity.
The minimum age required for the appointment and retirement of commissions’ officials should be decreased or kept as it is, and they should not be reappointed.
The Commission for the Investigation of Abuse of Authority, as proposed, should be reinstated in the existing form of a constitutional body, or should be established as a separate powerful organ under the executive.
The issue of clarifying the purpose and definition of appointing representative in the commissions, where three are required, on the basis of ‘proportional representation’ and ‘inclusive’ system.
Need to define the phrase ‘high moral character and social standing’, as mentioned in various parts of the report.
The issue that the appointment, job placement and promotion of employees of public enterprises should be brought under the Public Service Commission.

The major suggestions that the CA should give on the report of the Committee for Determining the Structure of Constitutional Bodies:

To suggest that the preamble written in the initial part of the report submitted by the Committee for Determining the Structure of Constitutional Bodies falls under the jurisdiction of the Constitutional Committee; and therefore, the issues that the Committee for Determining the Structure of Constitutional Bodies has recommended in its preamble should be considered as important context by the Constitutional Committee and referred to while drafting the preamble.
The Constitutional Committee should make direct arrangement after discussion on whether to accommodate the 11 commissions, except the existing 5, as proposed in the Committee’s report; or include within an umbrella body; or carry on with the proposal about the commission as discussed in the CA.
To direct the Constitutional Committee to reach a conclusion after discussing on every possible option to make the elected government accountable on the issue of controlling corruption by reinstating the existing system of the Commission for the Investigation of Abuse of Authority.
On the issue that the expenses of the constitutional commissions should be maintained through a reserve fund, based on the report of the Committee for Determining the Structure of the Legislative Body, it was decided that the CA would advise and direct the Constitutional Committee.
Regarding the appointment of the authorities of all the constitutional commissions based on the reports of the Committee for Determining the Form of the Government and other committees, it was decided that the CA would advise and direct the Constitutional Committee.
To direct the Constitutional Committee that all the commissions should not have equal number of members; rather, the number should be based on the nature of the commission, workload and necessity.
In the issue mentioned in page 4, sub-clause 4 of the Committee report that whether the Commission for the Investigation of Abuse of Authority should first consult the Attorney General before filing a case over anyone for corruption or could decide on its own for filing such case would be directed by the Constitutional Committee after reaching a conclusion after holding discussions.
Instead of federal division of the Public Service Commission as mentioned in the draft, a provision stating each federal state will have separate public service commission as per the legal provision.
The CA, on the report of the Committee for Determining the Form of the Government, should advise and direct the Constitutional Committee on two issues: On the subject regarding the election of the President and Vice-President could be brought into the jurisdiction of the Election Commission only after it is decided whether they would be elected from the parliament or from outside, as mentioned in page 17, sub-article 1 of the report. Likewise, after the issue of whether there would be separate executive and legislative in the state level as well or not, the election of those bodies would also be the responsibility of the Election Commission.
To direct the Constitutional Committee that the constitutional commissions that are mentioned in the Committee’s report, the state-level structures of those commissions that are to be formed after final decision of the Constitutional Committee would be based on the provisions as mentioned in the law.
To direct the Constitutional Committee to decide after discussion on the S. No. 25, article 37 of the Committee on Natural Resources, Financial Rights and Revenue Sharing, relating to the provision about National Finance Commission that whether it should be established as a constitutional body through the constitution or should be managed by law.
The issues where no consensus has been reached or where different opinions have been cited are addressed in the draft report, so proceeding would be done according to the draft report

The study has not found a single issue within the jurisdiction of the Committee, as stated by the Constituent Assembly Regulations 2008, untouched. But the Committee has also commented on issues falling under the jurisdiction of other committees. The report of the Study Committee mentions that propositions that fall under the jurisdiction of the Constitutional Committee has been repeated in this Committee. The rights to freedom, environment, drinking water, food, property, against exploitation, residency, and employment, that fall under the Committee on Fundamental Rights and Directive Principles, have been repeated, shows the report of the Study Committee.
Some of the issues and topics that were included in the report of the Committee on Natural Resources, Financial Rights and Revenue Sharing, but fell under the jurisdiction of other committees were: fundamental duties, state’s responsibilities, principles and policies, and directive principles and policies. The Study Committee mentioned that these fall under the Committee on Fundamental Rights and Directive Principles.
Similarly, National Reserve Fund (NRF); Finance Bill; the expenditure, revenue and expenditure estimation from the NRF; expenditure over the NRF; Allocation Act; additional estimation; advance expenses; credit expenses; special system for revenue and expenses; Emergency Fund; and Act concerning financial procedures fall under the Committee on Determining the Structure of the Legislative Body. Likewise, the ratification, integration, approval and support of treaties and agreements fall under the National Interest Preservation Committee.

Issues of Differences in the Report

The study shows that no consensus has been reached amongst the political parties in the descriptive comment on bio-diversity. Whether the first point of the initial draft proposal should mention ‘the registration and conservation of bio-diversity’ or not; the phrase ‘sustainable development and conservation’ to be added in the second point or not; and the phrase ‘competitive democracy’ should be replaced with ‘people’s federal democracy’ in the fourth point or not. Similarly, no agreement has been reached on the fourth point again where either ‘competitive democracy and socialism-oriented economy’, or ‘socialist republic and socialism-oriented economic system’ should be included. On the fifth point, there is disagreement on whether or not to add ‘local’ in front of the phrase ‘involvement of indigenous and ethnic groups in utilising the natural resources and tools’; and to replace ‘prior right’ with just ‘right’.
Likewise, no agreement is there in the following as well: The article 3 of the Economic Rights should mention that there should be people’s control in the drinking water sources; in article 4, Right to Food should not be included until the meaning of the phrase ‘food rights’ has been clarified; that the state should ensure the right to food and that the farmers should have the prior rights over food; and in article 5, Right to Property: ‘Any person would be compensated for his/her property while enacting the scientific land reform, or while confiscating his/her property for public welfare, or while exercising any rights over such property. The degree of such compensation would depend upon the prevailing law.’
Clarification is needed in whether the state should formulate laws and provide housing to everyone, as per article 7 Right to Housing, or this falls under the Right to Property. It should be mentioned that the elderly, the disabled and women should get the preference in Right to Housing. Similarly, article 8, Right to Employment is unclear and contradictory. The article 8 guarantees every citizens right to live respectfully and have employment as per one’s qualifications; the state should provide unemployment benefits; and the rights of the employer should also be guaranteed. The Study Committee mentions that there is disagreement within the parties on providing unemployment benefits, and preference in Right to Employment should be given to the indigenous and ethnic groups, the poor, Muslims and Dalits.
The main suggestions and directives that the CA should give on the report of the Committee on Natural Resources, Financial Rights and Revenue Sharing are:

In the discussion in the CA, page number 61 of the concept note , first paragraph of the subtopic of the introduction in the report presented by this Committee, the honourable CA members demanded to add the sentence: ‘The CA election has been possible with the people’s mandate gained from various historical people’s movements after 1951, people’s war and Madhes movement.’ As this issue has been raised in the reports of various committees including the Constitutional Committee (CC), it was decided that the CA should suggest and direct to standardise the language and content of the sentence later on.
Again in the concept note, page number 82, first paragraph, the phrase ‘studying the constitution of the world’s powerful nation America’ should be replaced with ‘studying the constitution of the United States of America’.
In the descriptive comment within the Financial System part of the preliminary draft, article 14, sub-article 12, the phrase ‘respecting the philosophy of autonomy’ should be replaced with ‘because it is necessary to accept and enact the philosophy of autonomy’.
A provision about National Natural Resource Commission is found in article 34 of the preliminary draft. The chief function, responsibility and right of the Commission is settling disputes that arise between the central and the federal governments, between federal governments, between the federal and the local governments, or between local governments. The Constituent Assembly Regulations 2008, Rule 66, serial number 3, mentions that solving the differences between/amongst the federal units would fall under the Committee on State Restructuring and Distribution of State Power. The Committee on State Restructuring and Distribution of State Power has already presented a preliminary draft mentioning provisions for solving the disputes that ensure between the federal units in its article 11. Therefore, the Constitutional Committee should direct the Committee on State Restructuring and Distribution of State Power and the Committee on Natural Resources, Financial Rights and Revenue Sharing to integrate both the reports to come to a pertinent conclusion.
The Constitutional Committee should focus on suggesting the rights of the federal state and the local governments to impose value-added tax and income tax, taking into consideration, the fact that this issue has also been addressed by the Committee on State Restructuring.
The issues where no consensus has been formed or where different opinions have been cited are addressed in the draft report, so proceeding should be done according to the draft report

The Report Study Committee has mentioned that the Committee on the Protection of the Rights of Minorities and Marginalised Communities has left some important issues unaddressed in its report. The Study Committee mentions that the report has not properly defined what ‘minorities’ and ‘marginalised communities’ are; the constitutional provisions for the upliftment of the minorities and marginalised communities and the effective implementation of that has not been recommended; and no review of the provisions as mentioned about the minorities and marginalised communities in the past constitutions has been done.
Similarly, the Committee has identified some issues that fall under the jurisdiction of the Constitutional Committee repeated in the preamble and preliminary draft, including the definition of the nation. Some of the issues that lie under the Committee on Fundamental Rights and Directive Principles are repeated in the preliminary draft submitted by the Committee on the Protection of the Rights of Minorities and Marginalised Communities. These are: provisions for citizenship, right to equality, right to education and culture, and right to religion. The Study Committee shows that the provision of national language has also been repeated in the preliminary draft.

Major issues left unaddressed and without consensus

The issue that rights of the minorities, marginalised and excluded overlap with other rights.
Various words such as exclusion, Tarai-residents, Madhesi, ethnicity, indigenous and ethnic, and fully proportional that are mentioned in various parts of the report.
The words such as: minorities, marginalised and excluded sects and communities, as mentioned in the Committee’s work-area and concept note, are itself not appropriate; rather words like oppressed ethnic groups and communities should be mentioned.
The issue that the sects and communities that have been excluded should be corrected in the concept note. People have been subjugated, exploited and oppressed, but not excluded.
The population of the Dalits and Janajatis as mentioned in page 19 is not based on statistics. The proportion of Dalits has been mentioned ranging in between 13 to 20 per cent, while the proportion of Janajatis is mentioned to be about 40 per cent, which are wrong.
The concept note has not included single women and AIDS-affected, who also fall under the marginalised.
The report does not mention about the type of electoral system that ensures the representation of the minorities, marginalised and excluded sects and communities in state-level institutions that are pro-people.
The concept note has not accommodated the supposition of a non-geographic area for the Dalits.
Ethnic self-governance is the best medium for ensuring the protection of the rights of the minorities, marginalised and excluded sects and communities; but, the report remain silent on this.

The major suggestions and directives that the CA should give on the report of the Committee on the Protection of the Rights of Minorities and Marginalised Communities:

The preamble and the definition of the nation mentioned in the preliminary draft of the report presented by the Committee on the Protection of the Rights of Minorities and Marginalised Communities falls under the authority of the Constitutional Committee. Similarly, provision on citizenship, right to equality, right to education and culture, right to religion, and the state’s directive principles and policies fall under the Committee on Fundamental Rights and Directive Principles. The provision on national language is under the jurisdiction of The Committee for Determining the Base of Cultural and Social Solidarity. The recommendations presented in the draft by the Committee on the Protection of the Rights of Minorities and Marginalised Communities should be taken as important contextual material by the Constitutional Committee; and should be taken into account while formulating content-specific issues in the constitution.
The CA should direct the Constitutional Committee to consider the fact that the rights of the minorities and that of the marginalised communities are different; therefore, the section on the rights of the minorities, marginalised communities and excluded groups, as presented by the Committee on the Protection of the Rights of Minorities and Marginalised Communities should be modified. The report of this Committee and that of the Committee on Fundamental Rights and Directive Principles should be tallied and necessary suggestions and directions be given.

The Rights of the Minority Groups:

Right to participation while formulating policies that are related to and affect them
Right relating to cultural heritage, traditional knowledge, skills, and technology
Right to language, script, and religion
Right relating to land and natural resources
Right to social security
Right to information and media in mother-tongue
Right to special representation in state structures
Right to the preservation of culture and tradition for the welfare and benefit of one’s community

The Rights of the Marginalised Communities:

Right to proportional representation in all state structures
Special Right to reservation and special representation in public service
Special rights in education, health, and social security
Right to land and natural resources
To recommend in timely modification of the definition of the minorities and marginalised communities as defined by the constitution; to monitor the implementation of the rights secured for these communities; to make amendments in the list of minorities and marginalised groups based on periodic studies like census and human development index; and to direct the Constitutional Council to mention in its draft to give the jurisdiction of all the aforementioned recommendation to a constitutional body through the constitution.
Through anthropological lens, the basis for the identification of the minorities is believed to be the least proportion of population as found in the national population. Not only this, the sociological perspective also believes that minorities are those groups who have been oppressed and discriminated against; those groups with unique ethnic, religious and linguistic specialisation and identities, who try to preserve this distinctive identity. Therefore, based on the above-mentioned two categories, the following would be the definition of minority communities in Nepal: ‘Minority communities are those whose population is fewer than a certain percentage, as defined by law; the ethnic, linguistic and religious groups who have their own unique ethnic, religious and linguistic distinctiveness, and have aspirations to preserve those unique identities; and are subjected to oppression and discrimination’.
Basically, the state of marginalisation means the status below the average economic and social status. Specifically, lack of access in the policy-making level; poverty and poor nutrition status; state of being unable to practice human rights and maintain human dignity; no environment to use one’s language and preserve and promote one’s culture; and poor level of educational and health status pushes a person into marginality. In the Nepali context, the following indicators could be taken as the tools to identify the marginalised communities:
Political: The state of access, representation and participation at various levels of policy formulation; the state of political consciousness
Social: The state of human dignity and respect, the state of using human rights, and the state of the utilisation, preservation and advancement of language, religion, culture and fundamental identity. Educational and health facilities.
Economic: The state of the ownership of land, the state of having or not having one’s own home, the state of the type of and the facilities within the home, the state of employment, the state of other properties, the state of the sources of income.
Geographic: The state of the availability, adequacy and access over resources

Based on the above-mentioned criteria, the following should be the definition of marginalised communities: ‘Marginalised communities should imply those individuals who have been made politically, economically and socially downtrodden; who have not been able to enjoy or have been denied services and facilities due to discrimination, oppression and geographic remoteness; and those who are ranked lowest in the human development index. The severely marginalised and endangered communities also fall in this category’.

Finally,

On the basis of the report of the Study Committee, the Constituent Assembly sent three reports to the Constitutional Committee with necessary directives. In a state where politics is in limbo due to the differences amongst the parties in hundreds of issues, consensus in just three reports should be taken as an important achievement. Maximum effort has been exercised to seek consensus amongst the parties; but nothing has been achieved. There has been no serious talk between the top leaders of the political parties about the serious issues of the constitution. While it is always good to try to make consensus in political decisions, nothing substantive has been brought out. Due to the lack of consensus in the Study Committee, the CA could not send adequate suggestions and directives to the Constitutional Committee. This has further raised scepticism on the constitution-drafting.