Will the pluralism-based federal democratic republic, specified in the Peace Agreements and Interim Constitution-2007, be overshadowed in the new constitution? The UCPN (M)-advocated views on executive, legislative, and judiciary are starting to raise such questions, which cannot be swept aside as they come from the largest party in the CA. Its proposal on legilstative resembles more closely those of China, North Korea, Cuba, and other communist countries. It not only wants to name the legislative “people’s representatives” but it also seems to emulate the workings, authority, and structure of the “people’s congress” of China.

Perhaps due to influence of the communist countries and their stress on the word “people’s”, the UCPN(M) exhibits affinity for its Nepali equivalent “jana”, and they seem to use this word in “people’s constitution”, “people’s representatives”, “people’s court”, “people’s struggle”, “people pressure”, “people’s singer”, etc. If their submission to the Committee for Determining the Structure of Legislative Body that “people’s representative will be highest and all-powerful body of the state” (see box) is any guide, they do not seem to be in favour of check and balance between the different organs of the state. According to the proposal, the courts will also be under the “people’s representative”. The government will be controlled by a “permanent committee” selected from the “people’s representatives” without whose approval, the government cannot even issue ordinances.

The draft report submitted to the CA by the chairperson of the Committee for Determining the Structure of Legislative Body Ramesh Rijal includes party proposal from the UCPN (M) and individual proposals for CA members of Madhes Janadhikar Forum and UML CA members. Forum CA members Om Prakash Yadav, Bijaya Kumar Yadav, and Renu Kumari Yadav have proposed the view that election to the House of Representatives should be based on the population to a total of 76 members, removal of single transitional voting system, and the vice-president should chair the national assembly.

Similarly, UML CA member from Jumla Devi Lal Thapa has proposed that population and electoral districts should be based on the geographic proportionality should be the basis for direct elections. He has requested that the phrase “based on population” should be replace by “based on population and geographic proportionality”, and “backward class, region” by “extremely backward Karnali, backward region, and backward class”. Other UML members Yashodha Devi Adhikari, Shila Katila, and Juli Kumari Mahato have proposed the insertion of “elections to the house of representatives should include a minimum of 50% candidature to women”, and “women’s representation should be assured” in the national assembly.

Differences in Other Committees

The National Interest Preservation Committee was tasked with preparing a draft report on national interest and defence and its chairperson Amik Sherchan submitted the concept paper and preliminary draft to the CA on 22 May 2009. The NC and UML CA members put note of dissent after the Committee proposed that “It will be the duty of everyone above 18 years of age to enlist in the army and serve the nation as called upon by the state”. They argued that such provision would further militarise the nation. They also urged that words such as “people’s war” and “people’s liberation army” be replaced with the terms from the Comprehensive Peace Agreement “armed conflict” and “Maoist combatants”.

After no solution was found in five days of discussions, the issue was sent to the Committee for Suggestions and Directions which was formed by the CA under Laxman Lal Karna as the coordinator to sort out the disagreements and suggest solutions. But even after three months, the Committee could not decide on whether to write “people’s war” and “people’s liberation army”, and it was mentioned in the report to be decided later, according to him. He said that instead of compulsory military training for anyone above 18 years of age, it was agreed that it will be included as optional educational curriculum. There was an agreement in the Committee to form Military Service Commission and Police Service Commission. After Karna became a minister, Agni Prasad Kharel took over as the coordinator, but it also has not solved more than three disagreements, which it has already sent to the Constitutional Committee. The CA spokesperson Mukunda Sharma informed that there remain a few disagreements in the Committee for State Restructuring and Distribution of State Power. (16 September 2010)

Many meetings of the Committee for Determining the Base of Cultural and Social Solidarity remained inconclusive over the official language. After “The language of the central government will be Nepali in Devanagari script” was included in the draft report, Forum CA members Hari Narayan Yadav, Muga Lal Mahato, Jaya Ram Yadav, Karina Begam, and Savita Yadav; Tarai Madhes Loktantrik Party member Kabindra Thakur; and Sadbhawana Party member Gauri Mahato Koiri wrote notes of dissent “Khas and Hindi languages in Devanagari script should be given the status of the official language of the central government”.

The UCPN (M) had remained silent on the dispute of whether Hindi should be an official language, but its 17 CA members in the Committee for Determining the Base of Cultural and Social Solidarity wrote a note of dissent arguing for multilingual policy. They have stated, “No single language should be specified as the official language of the state, local government or the courts, or lingua franca. Instead, a policy of multilingualism should be adopted”. They have suggested that Khas, Magar, Tamang, Tharu, Kirant, Limbu, Maithili, Bhojpuri, Awadhi, Gurung, and Nepal Bhasha should be the common language of the federal, state, and local government and to be used in the government and courts. They have suggested the use of an interpreter for this.

In the suggestions to the Committee, the Nepali Congress, UML, RPP, RPP-Nepal, CPN (ML), Rastriya Janamorcha, Nepal Majdur Kisan Party, Samajbadi Prajatantrik Janata Party, Pariwar Dal, Loktantrik Samajbadi Dal, Chure Bhawar Rastriya Ekata Party have suggested to make Nepali with Devanagari script as the official language for use in the central government. However, UCPN (M), CPN (Unified), and Nepa: Rastriya Party have favoured a multilingual policy. Forum, Tarai Madhes Loktantrik Party, and Sadbhawana Party have proposed that both Nepali and Hindi should be the official and contact language of the federal government.

In the voting for the draft report in the Committee for Determining the Base of Cultural and Social Solidarity on the use of “armed conflict” or “people’s war”, the UCPN (M) got only 12 votes out of 42. Yet, the UCPN (M) had insisted on writing “people’s war” in its note of dissent. The process of voting to settle disputes in the thematic committees was started in this Committee. Voting took place only in the Committee for Determining the Base of Cultural and Social Solidarity, Constitutional Committee, Committee for State Restructuring and Distribution of State Power, Judicial Systems Committee, and Committee for Determining the Form of Government. These series of voting had created huge disagreements by the time voting took place in the Committee for Determining the Form of the Government, and yet, the Committee could not prepare its preliminary concept paper and draft report, and also resulted in a scuffle between the Committee chairperson Shambhu Hajara Dusadh and Energy Minister Dr Prakash Sharan Mahat, and they were not speaking terms after. Both Dusadh and Mahat are from the Nepali Congress.

The Committee for Determining the Structure of Constitutional Bodies has recommended that 11 commissions be formed: 1) Commission for Investigation of Abuse of Authority, 2) Commission of Auditing, 3) Civil Service Commission, 4) Election Commission, 5) National Human Rights Commission, 6) National Women’s Commission, 7) Dalit Commission, 8) Indigenous Janajati Commission, 9) Commission for Interest Preservation of Minorities, Marginalised, Backward Areas, 10) Madhesi Commission, and 11) Muslim Commission. However, the Committee report is not without disputes where CA members from different parties have approved the report with notes of dissent. CA member from Rastriya Janamorcha and UML CA member Bhanubhakta Joshi have written notes of dissent. “Our party opposes the fact that the country has become a federation and naturally I am extremely opposed to the formation of different commissions recommended by the report, hence I have written a note of dissent,” writes Pun. UML member Bhanubhakta Joshi has written a note of dissent arguing the appropriateness of replacing “federal …. commission” with “national ….. commission”.

The members of the Judicial Systems Committee also disagreed on the future judiciary and its management. When the Committee chairperson Prabhu Sah Teli of UCPN (M) tried to include the judiciary under the elected parliament in the preliminary draft report and concept paper, then the issue was divisive. A large mass believes in an independent judiciary and keeping it under elected parliament risks judicial/constitutional supremacy and opposed the proposal, but it was passed by Maoist majority in the Committee, and Nepal Bar Association strongly objected to this report. While the Nepal Bar Association opposed the provision of possibility of appointing Chief Justices of the Supreme Court outside of judiciary, the political parties were opposed to it, but they were limited to writing notes of dissent in the Committee.

Regarding whether the justices should be should given reappointments or take oath under the new constitution during the transition, 19 CA members from NC, UML, RPP-N presented a united stand. They had argued that since the reappointment of the justices is also tied with the officials of other constitutional bodies and hence the issue should be decided together and this jurisdiction falls under the Constitutional Committee, so this should not include in the draft report. In their note of dissent, they have also urged that there should be a mechanism to set the qualification of the Chief Justice and appointment for justices of the state/provincial, Supreme/High Courts, and the constitution and laws should be interpreted by the Supreme Court rather than any committee of the parliament.

Moreover, the Forum CA members Akwal Ahmed Shah, Abhishek Pratap Shah, and Surita Kumari Shah wrote a note of dissent urging a constitutional court to be set up to interpret and settle disputes and issues regarding the national government, human rights and citizen interests, and politics.

The members of the Committee on Natural Resources, Financial Rights, and Revenue Sharing comprise industrialists, economists and fiscal experts as well as indigenous leaders. This Committee also held discussions and consultations with experts before preparing its preliminary concept paper and draft paper. The disagreement mainly centred on whether the policy on natural resources should give primary importance to the local people, and it was finally included in the report to give primary importance to the local people. The note of dissent not only came from members from industrialist and business community background but also from other members. CA member Rajendra Kumar Khetan wrote a note of dissent arguing for fair compensation to any appropriated land during land reforms; CA members Binod Kumar Chaudhary and Diwakar Golchha urged for a legal provision to provide compensation for any appropriated land during land reform. CA member Surya Bahadur K.C. also wrote a note of dissent. Members from NC, UML, Forum had also written notes of dissent supporting the proposal to provide compensation for appropriated land. The UCPN (M) CA members, however, deviated from the issue and in their note of dissent, they argued for inclusion of “outcome of people’s war, Madhes movement, and movements from 2007 BS” in the preamble.

Tarai Madhes Loktantrik Party CA members Jitendra Prasad Sonar and Hem Raj Tated wrote a note of dissent urging the rights of the state government to collect personal and institutional income while revenue sharing between the centre and the states. However, Binod Kumar Chaudhary argued that the right collect incomes taxes should rest with both the federal and state governments.

The Committee on Fundamental Rights and Directive Principles has prepared a comparatively long report. There was a long discussion on awarding citizenship to foreign women marrying Nepali men with several notes of dissent. The Nepali Congress argued for awarding Nepali citizenship through marriage to foreign women married to Nepali men once they renounce their country’s citizenship and if they wish to gain Nepali citizenship. CA members Bhupendra Chaudhary, Chandrika Prasad Yadav, Arbinda Shah, Ganesh Tiwari Nepali, Rajendra Mahato, Tilak Bahadur Thapa Magar, Lila Nyaichyai, Angdawa Sherpa, Urmila Thapa, Ushakala Rai, and Sunilbabu Panta had submitted different views regarding citizenship.

Rajendra Mahato of Sadbhawana Party wrote a note of dissent for a provision of a “single citizenship” issued by the state government in the name of “single federal citizenship”.

While the 1990 constitution had included 21 fundamental rights, the Committee in its report suggested inclusion of 31 issues under the fundamental rights. While the report was being discussed in the full seating of the CA, the report was burnt outside the main gate of the CA Building in New Baneshwor under the leadership of the some indigenous CA members, alleging non-inclusion of their rights in the report. Regarding fundamental rights, 17 UCPN(M) CA members wrote a note of dissent, “there will be no obstacle to bring an act targeting prevention political party formation whose activities seem against the state, work as a stooge of foreign powers, conspire against the state, promote regressive activities”. Besides them, eight CA Nepali Congress members, seven UML CA members, Chandrika Prasad Yadav, Arbinda Shah, Ganesh Tiwari Nepali, Rajendra Mahato, Tilak Bahadur Thapa Magar, Dal Kumari Sunuwar, Lila Nyaichyai, Gagan Kumar Thapa, and Sunilbabu Panta also submitted individual notes of dissent. Nyaichyai of Nepal Majdur Kisan Party wrote a note of dissent that the fundamental rights should not prevent carrying out of capital punishment for heinous crimes.

There were elections in 98 issues in the Constitutional Committee. (see box) which box, not clear. And it will be better to mention and write up and analysis. The Committee was supposed to submit its report the last after other committees had submitted theirs and include any issues left out by them; however, the Committee violated the regulations by submitting its report before the Committee for Determining the Form of Government and the Committee for State Restructuring and Distribution of State Power had submitted their reports.

The Committee for Determining the Form of Government could not prepare its official preliminary concept paper and draft report and submitted its report including all the notes of dissent to the full seating of the CA. The Committee chairperson Shambhu Hajara Dusadh also accepted its failure to come up with a report. He said, “Though the Committee could not prepare an official report, it submitted its report to the CA with all the notes of dissent”. However, professor Krishna Khanal feels that this Committee failed in to prepare its draft reports. He said, “Other committees prepared draft reports; the Committee for Determining the Form of Government failed to do so”. There were especially strong disagreements and disputes regarding the form of government and electoral system in the Committee. After the UCPN (M) advocated directly elected president and multimember electoral system, other parties including Nepali Congress, UML stood against this proposal. The UCPN (M) suggestion to the Committee while it was in government had mentioned a president elected from the parliament; however, once it was out of power, it reverted back to its earlier stance of directly elected president.

The Committee on State Restructuring and Distribution of State Power held its 127th meeting on 20 January 2010 and decided through a majority to recommend 14 provinces (9 ethnic provinces) with political prior rights and send it to the full seating of the CA. The Committee had reached consensus in all the previous meetings, but it could not agree on the number of provinces. In the eventual voting, the 6-province model proposed by the NC was defeated. Interestingly, two hours before the voting, all the parties were against the UCPN (M); however, at the last moment, UML sided with the UCPN (M), mainly due to Newar and Janajati CA members from UML.

The meetings had proceeded on the understanding that the provinces should be defined based on identity and capability. A sub-committee comprising of Hitman Shakya of UCPN(M), Narhari Acharya of NC, Mangal Siddhi Manandhar of UML, Jaya Prakash Gupta of Forum, Pratibha Rana of RPP to solve the issue of naming and delineating of the provinces. According to Pratibha Rana, a consensus had been reached within the sub-committee to approve both the 14-province and 6-province model for the full seating of the CA after four days of deliberations in the Godavari Village Resort. However, on the last day, Forum CA member Jaya Prakash Gupta walked out of the meeting protesting non-acceptance of Tarai as an autonomous province.

During the voting, Nepa: Rastriya Party member Buddha Ratna Manandhar had voted in favour of the 14-province model. However, he had already voted in the Constitutional Committee, and despite a clear guidelines stating that a member can only vote in more than two committees only if he is a member on them, his vote was recognised. His vote became the deciding vote in favour of the proposal with political prior rights.

There arose many disputes on the restructuring proposals. There was great turmoil within UML. In the full seating of the CA, the UCPN (M) members spoke in favour of the 14-province model while members from other parties spoke against it. Even among the UCPN (M) speakers, though they did not explicitly oppose the 14-province model, they expressed dissatisfaction over demarcation of the provinces. UCPN (M) member Pushpa Bikram Malla, in principle accepting the 14-province model, insisted that his own constituency be kept intact. He has raised objection to the fact that some of the village from his Dhading constituency no. 1 are going to lie in proposed states of Tamuwan (on Gorkha side now), Narayani (on Chitawan side now), and some will be in Tamsaling and asked it be corrected. Speaking in the CA, he said, “Whichever states they are in does not matter, but they should be in one state.”

There is a huge difference among the proposed states. Only 50,000 people live in Jadan, whereas more than 5,000,000 people live in the proposed Madhes-Mithila-Bhojpura-Koch state, which will directly affect the future federal parliament. Therefore, the models are the knots of the disputes. Also, Newa state will be completely surrounded by Tamsaling without any access to the outside, which raises the question of it being suffocated.
There is also the question of how democratic it is to give prior rights to any specific nationality. Only 23 nationalities are included within the autonomous, self-governed, and special areas, which has created another big dispute. The challenge of solving all these conundrums before defining the states remains.

Box Details of the drafts and notes of dissents:

On constitution of federal legislature

The Committee for Determining the Structure of the Legislative Bodies: “There shall be a legislature, to be called parliament, which shall consist of (the Head of the State), and two Houses, the House of Representatives and the National Assembly.”

UCPN (M): “There shall be a unicameral legislature in Nepal to be called Federal Assembly of People’s Representatives. The Executive President, on the basis of Peoples’ Federal Democratic National Republic System, shall be a part of the Legislature.”
The Committee: “The House of Representatives shall consist of one hundred and fifty-one members. Seventy-six of those members shall be elected by direct election, and seventy-five members shall be elected by proportional election. The House of Representatives election shall be conducted via adult-franchising and secret ballots.”

UCPN (M): “There will be 245-member federal assembly of representatives (multi-member constituency system, directly elected and proportional inclusion based on population and geography of women, Dalit, indigenous-Janajati, Madhesi, Muslim communities), which will be the supreme and all-powerful body of the state. It will form, direction, monitor, and supervise all other bodies of the state itself or form mechanism under it to do so. In the absence of meetings of the people’s representatives, a permanent 21-member steering committee with at least one member from all autonomous states will be formed to carry out legislative works.”

On formation of national assembly

The Committee: “The National Assembly shall be a permanent House.”

UCPN (M): “This provision should be removed from the draft as the federal parliament will be unicameral.”

On parliamentary seat vacancy

The Committee: “On the death of a member, his/her resignation, end of the parliamentary tenure, not meeting the qualification set down by the constitution, absence from 30 consecutive meetings without the approval of the concerned house, the seat will become vacant.”

UCPN (M): “As determined by the law, members will be recalled. On such instances also, the seat will fall vacant.”

On oath of office

The Committee: “I (full name of the member of house of representatives, national assembly, state assembly)… being completely loyal to the country and people, do hereby solemnly resolve/swear in the name of God that I shall, with genuine loyalty towards the Interim Constitution of Nepal, 2006, which ensures that state authority and sovereignty is vested in the people of Nepal, truthfully and impartially carry out my duties and responsibilities as the Chairperson/Vice-Chairperson of the Constituent Assembly, putting myself strictly within the limits of the existing laws, always thinking the good of the country and the people in high esteem, without fear, bias, prejudice or ill-will, and I will not divulge the secrets entrusted to me during the course of my work while I am in the office and after I am out of the office.”

UCPN (M): “While taking an oath by the members of the Federal Assembly of People’s Representatives and Autonomous Province People’s Representatives, it is only necessary to take an oath in the name of the people and the country. Therefore, the provision of administration of the oath should be determined on the same basis.”

Restriction of discussion

The Committee: “No discussion shall be held in either Houses of Parliament on a matter which is under consideration in any court of Nepal and makes negative impact in the hearing of the case, and about anything done by a judge in the course of performance of his duties, provided that nothing in this clause shall be deemed to bar the expression of opinion about the conduct of a judge during deliberations on an impeachment motion.”
UCPN (M): “Members of the Assembly may raise a question in regard to individual cases that are under hearing at any court of Nepal. However, there shall not be any formal discussion or decision on it. If the cases is inter-related to the ruling system of the country, having political inter component or issues of public concerned, or question of inconsistency of any law with the Constitution, there shall be a provision to bring this case into discussion and take decision or to form a committee and take a decision on the basis of interpretation of the committee.”

Procedures relating to the conduct of business

The Committee: “If a resolution is passed by either House demanding that of both the Houses be constituted for the purpose of managing the working procedure between the two Houses, resolving disagreements on any Bill, or for any other specified function, a Joint-Committee thereon shall be constituted.”
UCPN (M): “Special Committee of a maximum of 15 members in the Federal Assembly of People’s Representatives.”

Ordinances

The Committee: “If at any time, except when both Federal Houses of Parliament are in session, the Head of the State is satisfied that circumstances exist which render it necessary for him to take immediate action, he may, without prejudicing the provisions set forth in this Constitution, promulgate any ordinance as He may deem necessary. An ordinance thus promulgated shall have the same force and effect as an Act, provided that every such ordinance shall be tabled at the next session of both Houses of Parliament, and if not passed by both Houses, it shall ipso facto cease to be effective; may be repealed at any time by the Head of the State; and cease to have effect at the expiration of six months from its promulgation or sixty days from the commencement of a session of both the Houses.”

UCPN (M): “In the condition that the Federal Assembly of People’s Representatives is not in session, the government may issue an ordinance on the subject that is not provisioned by prevailing laws. The ordinance shall be equally applicable as law, provided that except for development and construction, services and privileges, national security, and to maintain communal harmony in the country, the ordinance shall not be issued. In the case that the government considers necessary to issue an ordinance, it shall be submitted to the Special Committee of the Federal Assembly of People’s Representatives. And if the Special Committee permits the government within the determined time, the government may issue an ordinance. The Ordinance shall be considered automatically repealed, if is not approved, according to rule, by the subsequent meeting of the Federal Assembly of People’s Representatives.”

Constitution of provincial assembly

The Committee: “On the basis of the population density of each particular province, no more than thirty-five members shall be elected to the Federal Assembly. Eighteen members shall be elected by direct election, and seventeen members shall be elected from proportional election. The election of the Provincial Assembly shall be conducted utilizing adult-franchising and secret ballots. Following the direct and proportional elections, in case women do not constitute at least one-third of the elected representatives, law shall be introduced pursuant to the proportional election provision to ensure that at least one-third of the Provincial Assembly representatives are women. Law shall prescribe the method for determining election constituencies and the number of members to the Provincial Assembly.”

UCPN(M): “The shall be twenty-five to forty-five members in the People’s Assembly of Autonomous Province on the basis of cast, language, and availability of natural resources and taking into consideration of the density of population and geography. The election of People’s Assembly of Autonomous Province shall be on the basis of multi-member constituency electoral system. The other matters in this regards shall be as determined by law.”