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Alliance for Social Dialogue

:: Nepal in Transition Constitution Making Process Committee for determining the structure of constitutional Bodies Proposal to Double the Existing Constitutional Bodies
Proposal to Double the Existing Constitutional Bodies
Written by TILAK PATHAK/ BHUWAN KC   

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Legislative, executive and judiciary are chief organs of the government. According to the theory of power separation, check and balance between these organs is necessary. In democratic and constitutional system, each body can exercise its power within the boundaries set by the constitution and allows other organ to perform its work freely without intervening others jurisdiction and without being intervened. To prevent the abuse of the state power, and to consolidate the rule of law, besides legislative, executive and judiciary other constitutional organs are also made arrangement of in a constitution.

Such bodies are necessary in a country, the report of the Committee for Determining the Structure of Constitutional Bodies has said,  to guarantee exercise of democratic norms and values, equal opportunity to participation in state mechanisms, guarantee of  civil, economic, social and cultural justice, and  guarantee of  public accountability of the government toward its people. This is not to say, however, that Nepal has not exercised the system of constitutional body in the past.

The constitution of Nepal 1990 had made the provisions of Commission for Investigation of Abuse of Authority, Public Service Commission, Election Commission and Auditor General. But interim constitution of Nepal 2007 has added National human rights Commission as a constitutional body. During and after the people’s movement 2006, various groups, class and regions have raised demands for their rights. Taking in to account such demands and needs, Committee for Determining the Structure of Constitutional Bodies has proposed constituting six more bodies than that of the past in its report.

The new commissions that the committee has proposed include Women’s Commission, Dalit Commission, Indigenous Community Commission, Muslim Commission, Madheshi Commission, and Commission on Protection of the Rights of Minorities, Marginalized Communities, Disabled and Backward Class and Region. To bring the person holding any public  position  to book if s/he commits misappropriation of funds, illegal wok or corruption, the constitution of 1990 had  constituted Commission for Investigation of Abuse of Authority.  To control and control corruption CIAA has taken many measures in this period. But corruption in the country has not lessened. It is growing. CIAA has been charged of having been made ineffective to function and being unable to function effectively itself. The officials of the CIAA themselves claim that their advice and suggestions are not heeded and executed by the government.

The constituent assembly report has proposed the need of Commission for Investigation of Abuse of Authority to make the officials holding the public positions more accountable toward people, and to work as an agencies to lead their activities for the people’s good. The report holds that such a commission is needed for a state.  Such committee investigates whether the officials under constitutional and law authorities are misusing ad abusing the rights that they are bestowed and thus causing harms and miseries to the people and then takes timely action. Such a body, as the report states, is independent and unbiased. Likewise, the committee recommends auditing public property and in case of excessive and unlawful expenses drawing attention of the legislature parliament. To this end committee recommends constitutional protection to the Auditing Commission and keeping it independent.

Of all the constitutional bodies in operation from 1990 to this day, only Public Service Commission is seen to work successfully and effectively. It is in the leading position in performing work fairly. Committee for Determining the Structure of Constitutional Bodies recommended the Public Service Commission to make the civil service more result oriented. The committee also prescribes developing this commission as a fair and independent authority so that it could select competent members in civil service and recommends putting PSC under the constitutional body. Democratic institutions are empowered and enriched by fair and free elections. Fair election is one of the fundamentals of democracy. Therefore, the committee report says, Election Commission should  be recognized as a constitutional body. Since the beginning of the constitutional exercise, constitutional practices like preparing voters list, monitoring regulating  controlling and  running the election  have been  realized through an independent election commission. Therefore, the committee has acknowledged Election Commission as a body to  conduct free and fair election in the new constitution.

The role of Human Rights Commission has multiplied in the transitional political situation and especially after the United Communist Party of Nepal UCPN) Maoists, joined the mainstream politics by renouncing armed rebellion. Though the Commissions has studied about the human rights violations and submitted its report to the government for brining human rights violators to book, the human rights violators have been walking scot-free. No action has been taken against them. The human rights criminals are escaping also because of the decision made on the basis of political consensus. In this regard the report of the committee has made the rational and effectiveness of the commission clear in these words; It is the responsibility of the state to protect basic human rights of every citizen. If an independent and autonomous constitutional commission is constituted by following the global principles of human rights, international law and the treaties and agreements of the UN regarding human rights, the government officials of various positions who breach the human rights of a person or a community can be brought to justice and the protection and guarantee of the human rights can be ensured. Effective performance in the field of human rights protection can then be hoped.

Commission on Women is actively working in the field of  protecting women’s rights and fighting for their cause. The committee proposes to make the commission the constitutional body in the new constitution. The report of the committee justifies that constitution of Federal Women’s Commission is necessary to bring and assimilate women into the mainstream of development by protecting ad enhancing their rights, by ensuring overall development and growth of women and by guaranteeing sexual and gender justice to them. Also to protect the rights of Dalits and to bring and to adjust them into the mainstream effectively, to ensure overall development of Dalits and to ensure justice to them constitutional provision of Federal Dalits Commission is desirable. The committee is committed to this provision.

As for the need for the constitution of Commission on Indigenous and Janajati Community the report says “ it is necessary to make constitutional arrangement of Federal Indigenous and Janajati Community Commission to bring and adjust the indigenous community and janatis into the mainstream of development , to protect their rights,  to  ensure their overall development  and to guarantee justice to them.”

To protect the rights of disabled, minority and margined community, backward class and region, to brig and adjust them into the mainstream development, to ensure their overall development and to guarantee justice to them, the committee has held that it is necessary to form Commission on Protection of the Rights of Minorities, Marginalized Communities, Disabled and Backward Class and Region. Likewise, the committee report says, to protect the rights of Madheshi Community, to bring and adjust them into the mainstream development, to ensure their overall development and to guarantee social justice to them, constitution of Federal Madheshi Commission is desirable.

The committee report says, to protect the rights of Muslim Community, to bring and adjust them into the mainstream development, to ensure their overall development and to guarantee social justice to them, constitution of Federal Muslim Commission is desirable. Principles of inclusiveness and proportional representation is should be taken into account while appointing official in the constitutional commissions. The committee proposed to make arrangement of constitutional bodies in provinces as well.

Only two different opinions

CA members Meena Pun of National People’s Front and Bhanubhakta Joshi of UML had put different opinions regarding the committee report. Pun objected to  using the word ‘federal’  before the names of the constitutional bodies in the preliminary draft report  and concept paper. Her proposal says” Our party National People’s Front is averse to the country going into federal system. The preliminary draft reports and concept paper prepared by this committee mentions that the constitutional commission are federal in structure. I submit my different opinions against the use of the word federal.” Joshi suggested the term National Federal Commission instead of Federal Commission as used in the committee report in the structure of constitutional body.

Proposal of the parties

Thirteen political parties had submitted their proposals about the constitutional commission in the committee. Many parties proposed to recognize Commission for Investigation of Abuse of Authority, Public Service Commission, Election Commission and National Human Rights Commission as constitutional commissions. Nepalis Congress suggested the committee to constitute Commission for Investigation of Abuse of Authority and Corruption, Public Service Commission, Election Commission and Auditor General. Madheshi  Jana Adhikar Forum (MJAF) proposed to make arrangement of Federal Public Service Commission in centre and Provincial Public Service Commission for the province. MJAF prescribes an end to the provision of Commission for Investigation of Abuse of Authority. The main responsibilities of controlling corruption and abuse of authority, MJAF argued, is that of government. It suggested forming an independent separate and effective authority accountable to the government for corruption control.

Sadbhabna Party suggested putting Commission for Investigation of Abuse of Authority, Public Service Commission, Election Commission, Human Rights Commission, Police Service Commission, Auditor General, Auditing, and Inclusiveness Commission Labor Commission under the structure of constitutional body. The party also proposed to form commissions on minority, dalits, indigenous community, marginalized Muslims, women, Madheshi, and backward class. Nepal Communist Party (ML) suggested forming Commission for Investigation of Abuse of Authority, Public Service Commission, Election Commission  National Human Rights Commission, Auditor General and Interprovince Relation Management Commissions.  NCP(united) proposed Commission for Investigation of Abuse of Authority, Public Service Commission, Election Commission  National Human Rights Commission, Auditor General, National Land Commission, National Dalit Commission,  and National Women’s Commission. It also proposed to form Indigenous and Janajati Language and Culture Commission, Natural Resources and Heritage Commissions, Minority, Gender, Disabled, Commission and Muslim and Religious Minority Commissions.

Nepal Labor and Peasant’s Party proposed to recognize Commission for Investigation of Abuse of Authority, Public Service Commission, Election Commission  National Human Rights Commission, Auditor General, Peasants, Labor and Women Commission, and Attorney General. Chure Bhawar National United Party Nepal and Socialist Democratic People’s Party Nepal suggested Commission for Investigation of Abuse of Authority, Public Service Commission, Election Commission National Human Rights Commission, National Auditing Commission and Commission on Provincial Affairs. Nepal Democratic Socialist Party suggested making indigenous community, disabled, women, children, youths and unemployed youths, Muslim, land rights,  and justice system commissions as constitutional commissions. It also proposed commissions on sex and gender and backward class. Nepal Family party had proposed to form Commission for Investigation of Abuse of Authority, Public Service Commission, Election Commission  National Human Rights Commission, National Auditing Commission, Interprovince Affair Commission, Youths, Women and Children Commission, Dalit Commission  Cross-religion and Cross-cultural harmony Commission.

Committee for Determining the Structure of Constitutional Bodies met 54 times.  191 hours were spent in the discussion about the constitutional bodies in the meetings. It was indeed a challenge  to decide which of the proposed  and recommended commissions to be recognized as constitutional and which not.  To recognize a body as constitutional mainly its need and long-term base and goals have to be taken into consideration.

Conclusion

Formation of commissions and their recognition as constitutional  bodies alone is not a big thing. Important thing is their accountability, fairness at work and their implementation. Constitutional body must concentrate on accountability and impartiality. Government and other concerned authority should also implement the serious suggestions offered by the commissions. If the commissions are not fair, and if their recommendations are not heeded and implemented by the government authorities, the fame of the commissions diminishes. A body should not be formed simply on demand  given constitutional credence. Their rational, usefulness, and long term need should be taken into account. Barring a few exceptions, the appointment process in Nepal has been continuing on the basis of the political arithmetic. This could give rise to converting those that have worked in closeness and in favor of one’s political parties as officials to the commissions as a reward to their political loyalty. Though there is special modality for appointment in constitutional body, there also is culture of appointing officials in the commission on the basis of political power sharing. If this tendency is not discouraged and officials are not selected on the basis of their experiences and competence, all commissions might forget their roles as constitutional commission and may remain just commission.