Shambhu Hajara Dusadh
Chairperson, Committee for Determining the Form of Government

How did you start the work after formation of the Committee for Determining the Form of Government?
We proceeded as per the CA Regulations. The Regulations has outlined the working procedures of the Committee. The main issues are what should be the form of the government? What should be the election system? What should be the form of government in the centre, federal, and at local levels? We discussed and consulted about these issues with experts on government, election, and governance systems by inviting them to the Committee. During the consultations, many experts related the international experience on the form of government. Many felt the present parliamentary system was best for Nepal. ‘We do not have experience to go for a new one. Difficulties might arise. Might not be successful as well,’ was their suggestions. There were different opinions like instability of government, trading of parliamentarians, and other weaknesses in the parliamentary system, which has left the country in critical situation. However, the experts suggested it was best to remove the weaknesses from the parliamentary system and move forward by improving upon it.

How did you select the experts? Was there any particular criterion?

The committee members were from UCPN (M), Nepali Congress, UML, and Forum and other parties. While discussing among ourselves, the members proposed to call certain experts. Then we called the experts.

Did you discuss first form of government or election system?

In fact, we had two issues: governance and election system. We formed subcommittees for both issues. They submitted their reports. Initially, Nepali Congress, UML and other parties had an agreement on the form of government. Only UCPN (M) had stressed on directly elected presidential system of governance.
Election system was to be mixed proportional and inclusive just like the CA elections. UCPN (M) also agreed on this initially. The coordinator of the sub-committee was also a UCPN (M) CA member. Later on, they changed their position and stressed on multi-member election system. Differences remained on this. The position of UML and Congress is only for mixed proportional election system.
UCPN (M) maintained their position on directly elected presidential system of governance. Their position was that the president should have authority. On the issues of form of government, Congress and UML wanted to keep the present parliamentary system.
 

UML had talked of directly elected prime minister?
In the beginning, UML had proposed directly elected prime ministers. However, in the voting in the Committee, UML CA members voted jointly with Congress. During discussion in the CA, some Ca members were seen in favour of directly elected prime minister.
 

UCPN (M) had also talked of presidential system with prime minister?
The position of UCPN (M) is mainly presidential system. Tarai Madhes Loktantrik Party (TMLP) had a different proposal, which called for election of the president from the parliament; its main thrust is that there should be no prime minister. In the voting that followed, some votes were also cast in favour TMLP proposal.

How did you find the roles of the CA members from smaller and larger parties?
There are only two or three representatives from the smaller parties. They do not have majority. Members are mainly from Congress, UML, and UCPN (M). The main contention is between leftists and democratic powers. The leftists insist on a form of government of their choosing and democratic powers stress on the present parliamentary form of government.

Were there separate proposals from the smaller parties?
There was a proposal from TMLP. There were no proposals from the other parties. Nepali Congress CA member Pradeep Giri proposed directly elected prime minister.

How did you find the role of the CA members in the Committee?
During discussions in the Committee, an agreement seemed to be close. There was a feeling that we could take a middle path without following either the UCPN (M) or Congress proposal. There was a possibility during the discussions that there would be an agreement on directly elected prime minister. The gist was the same whether it was directly elected president or directly elected prime minister. However, the CA chairperson warned us of the little time we had and put pressure on us to come to a conclusion soon. There was talk of reaching a conclusion even through voting. In the meantime, we decided to hold talks with senior leaders. They did not come to the Committee. Baburam Bhattarai from UCPN (M), Ram Chandra Paudel from Nepali Congress, and Bharat Mohan Adhikari from UML came to the Committee. They stressed more on party position and ‘line’. The possibility of an agreement among the members in the Committee ended after the leaders came and stated their party position. Then we went for voting but none of the proposal got a clear majority. Then we prepared our report by including all the three proposals.

How active were the members?
Most of the members used to come to the Committee meetings; there were not any abstentions as such. Some members being absent for other works is a different case. There was active participation in Committee from the members.

Did the disputes in the government have any effect on the Committee?
There was no effect on the committee as per se but it had during preparing the agenda. It also affected the whole CA. the absence of government and failure to agree about government obviously delayed the work of the CA. the leaders were more focused on getting the seat of the government, getting consensus in their favour rather than on attending meetings and discussions. This delayed the conflict-drafting process.

Was there any effect in setting agenda while the parties in power, out of power, and when there was possibility of joining the government?
Nothing as such. The CA was extended for one year. We worked in haste before the CA extension. This was not easy because there could have been a unanimous decision through consensus reached through various discussions among the members. But, there was not sufficient time.

Would there be consensus if there had been additional time when there was dispute on the main issue?
There could have been. There could have been a unanimous decision.

The CA members conduct themselves from the party position or did they use their personal discretion?
There was participation of different regions and various class in the CA. for the first time, there was participation of Dalit, Janajati, Madhesi, and women in the CA. all these four had said that the constitution should be only for them. There was attempt to guarantee their rights at any cost in the constitution. However, the senior party leaders had put pressure to toe the party position.

Then, there was pressure from the senior levels on the constitution-drafting process?
The instruction from the senior levels had a serious effect. Ram Chandra Paudel, Baburam Bhattarai, Pushpa Kamal Dahal, Madhav Kumar Nepal, Jhala Nath Khanal were in power yesterday, they ruled. Some of them are still in power at the moment. They will be in power tomorrow and rule again. Their rights has not been taken away, has not eroded. Now there are demands from various ethnicities and communities. In the beginning, they had not raised the raised demands for their rights and had kept quiet. But when they started demanding their rights, other groups were in trouble. The group wielding more rights and resources should give up because when others start demanding it, there is no way out but to give them. The delay in the constitution-drafting process was due to this. Perhaps, it is their inner wish that the constitution is not drafted and they do not have to give up theirs, and our share will not be taken away.

What level of attempts by the senior leadership did you find to resolve the dispute on the form of government?
When we look at it, we that the leaders are more focused on government leadership than on drafting the constitution. Who joins the government? Who becomes the prime minister? Who becomes ministers? Senior leaders exhibited more focus on the government power. This has resulted in the overall delay. Instead of taking responsibility for the primary task of drafting the constitution, leaders focused on government power. Therefore, the issues of constitution drafting got overshadowed.

Where was the main complication?
It was more in the form of government. The President overturned the decision of the UCPN (M) government to sack the Chief of the army Staff at the request of the parties, which is called the army chief scandal. UCPN (M) say the ceremonial president interfered. What he would do if he had all the authority? UCPN (M) say that was interference and demand president with full powers. How can this be reconciled? If the president is made all powerful, it could be like tyrannical king. I do not think UCPN (M) action and position are in agreement.

What were the challenges for the Committee?
There were not major challenges. The committee discussions focused on good and bad. The experts gave their opinions. It was when the party position came in the discussions that the challenge started. We are not drafting the constitution for a party. The constitution cannot be only for Congress and UCPN (M). What do the people want? What is needed for the country? There was less attention on these points. I do no think the political party leaders gave much thought to the holistic development of the people, guarantee of their rights, and recognition of their identity. It is not because of others in the Committee but the polarisation and position of the leftists and democrats that there was no agreement. What is there if both shifted from their positions to institutionalise democratic republic for the people and country? We should move on that direction.

By: Bhuwan KC
Publication date: May 9, 2011

Ramesh Rijal
Chairperson, Committee for Determining the Structure of the Legislative Body

What was the main responsibility of the Committee?
It was to prepare a preliminary draft outlining the structure and role of parliament in the constitution after discussion with and consulting everyone.

What method did your Committee use to approve the report?
First, we decided on the bases for us to work. Then we started to work based on that. We collected the views of the Committee members. And we went prepared a questionnaire to get people’s opinion and went to the people. We held discussions again based on the opinions and suggestions of the people. In the meantime, we also consulted experts on parliamentary system, legal experts, and political scientists. And we prepared a consensus report by including all these things. From the people’s suggestions, what form of parliament was favoured?
More suggestions were in favour of bicameral parliament. In the beginning, UCPN (M) and others went to collect people’s opinion with questionnaire on bicameral parliamentary system. They were also in favour of bicameral parliament. However, two or three days before submitting the draft report, they insisted on unicameral people’s representative assembly in the centre as their party had changed its position and they wrote a note a dissent. The Committee in its report to the CA made provision for bicameral House of Representatives and National Assembly in the centre and unicameral parliament in the states and there was discussion for four days in by a full seating.
During the elections also, they had argued for bicameral parliamentary and multiparty system and stuck to this in the Committee until the end. However, after the party issued a whip, the Committee members supported by UCPN (M) influenced by this decision. After the party decided that there should be unicameral people’s representative assembly in the centre, they also supported that position.

Who else wrote note of dissent while finalising the report?
Only Maoist colleagues wrote note of dissent.

What was their main demand?
It mainly concerned the demand for unicameral people’s representative assembly at the centre, multi-member election system, and that judiciary should be under the control of the people’s representative. There was the proposal to set 16 years of age the limit for the elected assembly. Initially, there was serious discussion only focused whether to keep people’s representative assembly or House of Representatives. Non-Maoist colleagues were questioning the need to keep ‘people’s’ in every place and they were not willing to back down from the term ‘people’s’. Later on, they went for unicameral parliament rather than semantic discourse and discussion, and due to which there was no agreement. They wrote a note of dissent.

What were the proposals of the Committee in these issues?
The Committee proposed bicameral parliament in the centre and unicameral parliament in the in the states, independent judiciary, legal voting age for the house of representatives to be 18, and to be member of the national assembly, one should be at least 35 years of age.

Do you believe the CA will approve the proposals of the Committee?
If the leadership of the political parties sits down together and looks for a point of agreement, there are many possibilities for consensus. If that can be done, it is possible to include the core of the parliamentary system of the Committee report in the constitution by altering preamble of the report.
The main issue is that it all depends on whether the Maoist colleagues want a people’s constitution as under communist rule or a constitution adhering to democratic rule. If they want democratic constitution, it will not make that much of a difference by alternating a few recommendations of the Committee. Main issue is the form of the government. There are also possibilities for consensus. What we have proposed concerns the structure and role of the parliament. There is no disagreement on the parliament in the states. If democracy is also the main focus in the centre, there are no issues that cannot be agreed upon.

Please elaborate on the structures of the proposed federal and state parliaments.
We have proposed 151-member (76 directly elected and 75 from proportional representation) House of Representatives in the centre. However, colleagues who have written a note of dissent have proposed a unicameral 254-member people’s representative assembly in the centre. In addition, they have stated that while taking oath of office, it should not be in the name of god. In the beginning, Maoist colleagues were proposing 245-member House of Representatives and 75-member national assembly. For the states, state assemblies with state chiefs has been proposed. In the report, state assemblies with up to 35 members depending on the population has been proposed.

What kind of challenges did the Committee face while drafting the report?
There were no challenges as such. There were some difficulties in a few issues. Maoist CA members proposed keeping the judiciary under the control of the people’s representative assembly and recalling of the elected representatives at the recommendation of the political parties. But, other party CA members could not agree to that. In a way, periodic election is the means to recall the representatives by the people. I know of no such recalling of the representative s in the world such as the one they have proposed. The view that people’s representatives elected through secret voting should not be recalled by party whip became stronger in the Committee. There was no way of reaching an agreement on this. Similarly, Maoist colleagues had proposed taking the oath in the name of the people instead of god. However, other colleagues had proposed that those who want to take the oath in the name of god will do so and those who want to take it in the name of the people will accordingly. They also could not agree to this.

What was the influence of the parties while preparing the draft?
Except for the Maoists, all the parties were in agreement. While submitting the report, it was clear that the Maoist-supported members were under the party influence and stood for the party whip. Otherwise, we did not experience any influence as such.

By: Dhruba Simkhada
Publication date: April 25, 2011

Nabodita Chaudhari, Chairperson
Committee for Determining the Base of Cultural and Social Solidarity

What issues did the Committee for Determining the Base of Cultural and Social Solidarity include while preparing the preliminary draft report?
The Committee has drafted the report by identifying the including the Nepal’s diversity of language, culture, and unity. While drafting the report, there were many discussions on these issues. We consulted experts on these issues and included the opinions and suggestions for the public and prepared a report based on consensus and submitted to the CA Chairperson ahead of time.
 

Do you mean to say that there were no differences while preparing the report?
I did not mean to say that. There were many differences among the members in these issues. However, we resolved the differences through discussions and consensus.

Was not your Committee the first to prepare the report based on minority and majority bases (voting)?
Yes. A few days before submitting the report, the Committee members became divided into two camps regarding whether to include ‘people’s war’ or not. Maoist colleagues could not let go of their attachment for the phrase ‘people’s war’ and colleagues from other parties felt ‘armed conflict’ covered everything. Maoist colleagues were intent on including the phrase and colleagues from other parties would have none of it, so as per the CA Regulations, we decided to resolve the issue through voting.

Then, the meetings of the Committee were focused more on ‘phrases’ rather than ‘issues’?
We could say that in this instance. However, the Committee did not get consensus and take decision on this issue alone, but has garnered consensus on m any important issues.

What was the outcome of the voting?
In the voting, the motion to include ‘people’s war’ fell in the minority. In this instance, UCPN (M) was on one side, and Forum, Congress, UML, TMLP and other parties stood on the other side. Then, they wrote a note of dissent in the report, which has been included in the report. However, on important and sensitive issues of language and culture, there were no difference among the Committee members and people; therefore, this is report is a consensus report.

The different committee of the CA could be called min-CA. These committees sought to get consensus as far as possible while drafting the reports and had taken to voting (majority) to conclude where they failed. Could not the full seating of the CA do the same?
Committees themselves are constitutional; however, there is provision for committees to endorse reports through majority decision but the CA is required to seek consensus or legally required to pass with two-thirds majority. Therefore, the full seating of the CA could not take the majority and minority voting routes to resolve the differences seen in constitution-drafting.

What has the Committee stated as the official language in its report?
The Committee has prepared the report taking a long-term view on language policy. In a linguistically and culturally diverse country like ours, to ensure there are no language barriers, the Committee has proposed the formation of a language commission and it will propose languages fulfilling certain standards for official use. There is also the provision of the parliament to approve any such proposal. In this way, all the national languages will respectively gain the status of the official language.
As there is commitment towards federalisation of the country, the Committee felt the need for similar language policy and it has mentioned this in its report. It has proposed three languages at central-level, federal state level, and local level for official use. Thus, three different official languages have been proposed at central, state, and local level.

Then what will be the official language of the federal government?
The Committee has proposed that Nepali with Devanagari script as the official language at the central government. Also, though the Interim Constitution 2007 states the country will be federal but that has not been translated into practice because the constitution of federal Nepal has not been drafted yet and state and local government units have not been formed yet. Therefore, after the states have been formed, language commission will be formed and its recommendation will be final.

When and what type of commission will that be?
The Committee has conceived of a language commission, which will be inclusive and will have representation from the central to the state level. It has also been mentioned in the report that such a commission has to be formed within one year of drafting of the constitution. Certain standards have to be met to become official language at the central level.

Who will see if those standards have been met or not?
All responsibility has been given to the proposed commission. Languages will be added to the list for long-term. This process is still continuing in neighbouring India half a century after drafting of the constitution.

So the Committee has proposed Nepali to be the official language for now?
For now, Nepali will remain the official language at the central government level. The Committee has endorsed this proposal. However, other languages meeting the standards can also be included and such languages have not been excluded from the possibility of becoming official languages of the central government. They can become one after meeting the standards.

But why was it necessary to specify that Nepali to be the official language of the central government?
Nepali language is the lingua franca of every Nepali citizen and different communities. This is comfortable for everyone. It is one thing to oppose for the sake of opposing but quite another to think practically. This does not mean that by making Nepali the official language that it is an attempt to finish off the other languages. The state should pay attention to their protection and preservation.

Madhesi parties had demanded that Hindi be included as the official language along with Nepali and had written a note of dissent. How do you see this?
Hindi is spoken by two hundred thousand Nepali. Therefore, it is also one of our mother tongues. There is no reason to be negative towards this. Hindi is also spoken in the Tarai. Many also understand it. It is not that Hindi should not be one of the official languages but it is valid to think whether this would undermine other Tarai languages. Also, we will not be finished by using Hindi.

But those parties proposed Hindi to be an official language disregarding Maithili, Bhojpuri, Tharu and other Tarai languages. Would not it risk our mother tongues being extinct?
There could be two reasons for this. One, it could be that they could have proposed Hindi out of sincere demand as the lingua franca since Hindi is understood by most locals. If this is the case, then this is welcome because Nepali has also been recognised by India. I do not think we should be suspicious for developing Hindi as a lingua franca. Two, it could also be a political propaganda to attempt to gain popularity.

By developing Hindi as lingua franca, will it have more positive effects or negative in Tarai?
There are many languages in Tarai. There will be no problem if those languages also come up along with Hindi, but if it dominates or puts other languages in the shadow, then there will be problems.

But they have demanded only for Hindi?
It could be there political strategy to gain popularity. I feel that the parties raised this demand to capture the sentiments on the Indians in Tarai. There should not be dominance of one language. It is because of dominance of Khas Nepali that there has been demand for this dominance to be broken up. It is necessary to move forward respecting Nepali, Hindi, and other regional languages.

How did you coordinate while leading the Committee?
There was no problem with this. We respected each other and understand the sentiments of all the Committee members.

What was the most memorable moment while you were in the Committee?
Because of the differences over whether to include ‘people’s war’ or not, members nearly came to blows. Therefore, it was challenging to take this towards a resolution. In the beginning, the Committee meetings were very cordial. There was consensus on many issues; however, the meetings became strained over whether to include this phrase or not. I cannot forget the incidents of that day.

How is your relation with Committee members at the moment?
It has remained very cordial. There are no problems; we still respect and are gracious with one another.

By: Dhruba Simkhada
Publication date: April 25, 2011

Laxman Prasad Ghimire
Chief Whip, Nepali Congress
Legislature-Parliament

What are the indispensable elements for federalism to be sustainable?
It is necessary to pay attention that states are not dependent on others; at least, the states should able to manage its administrative expenses. There should be potential to develop natural resources in the future in the state. It is also necessary to look at the bases for generating employment within the state. Careful attention must be paid to ensure that any caste or community should not perceive itself to be excluded. Similarly, attention must also be paid to the ease and possibility of inter-state travel and transportation, and attention must be paid on creation of appropriate atmosphere for inter-state help and cooperation.

Which is appropriate for us, ethnic or non-ethnic federalism?
There should be no whiff of ethnicity in delineating the states.

Why no ethnic states?
In the proposed 14 ethnic states, no ethnicity has a majority. No ethnicity has more than 30% population. Any state based on one ethnicity but that excludes 68-70% of other ethnicities/groups cannot stand up to the problems related to ethnic problems likely to rise in the state. Making any ethnic group chief minister for two terms has the possibility of the creating instability. Therefore, a country with plural society like ours should not be divided along ethnicity-based states. If it is done, it will create problems.

Until now, the CA has not decided on the form of government to be adopted. In your opinion, which form of government is appropriate for us?
While drafting the constitution, attention should be given to issues that will have long-term consequences. This is not like laws that can be implemented once and repealed later. If a the president or prime minister is directly elected by people but without accountability to the parliament will impose his unbridled views and can gain a foothold and there is the risk of giving birth to a dictator.
In other countries including the USA, directly elected executive leaders have become dictators. Therefore, Nepali Congress does not want to give birth to a dictator through the constitution itself. We want a multiparty parliamentary system based on pluralism that elects prime ministers from the parliamentary. At the present, we have no agreement with Maoists on the issue of pluralism. Since the prime minister is elected by the majority in the parliament, s/he will be accountable to the parliament and there will be no risk of becoming a dictator. We can improve on it; for example, the provision of not bringing vote of no-confidence against the prime minister for one year.
In the presidential system, the role of political parties becomes weak. The weak of role parties will mean the end of multiparty system. Therefore, if multiparty system, which is the base of pluralism, is not adopted, then democracy will also end. Therefore, in our context, a directly elected executive presidential system is not appropriate.

Which is appropriate for the central parliament, unicameral or bicameral? Why?
We should not make a unicameral parliament in the centre. When we are going to federal system, then bicameral parliament is imperative and necessary. Directly elected (first past the post and proportional representation) lower house and an upper house of representatives from the states should be formed, which will ensure the voice of the states is heard in the upper house more and this helps strengthen the federal system.

There has been no agreement even on the election system in the CA. What are you views on this?
Mixed system (as in the CA election) is appropriate. However, the number of directly elected seats should be increased and the proportional representation seats should be reduced. And if possible, the lower house should be directly elected and upper should be through proportional representation.

There did not seem to be much difference opinion on the judicial system of the Federal Democratic Nepal. What should it be?
We cannot make Supreme Courts in all the states. In a country like Nepal, there is the Supreme Court and High Courts in the states; there is a common High Court between two states in some cases. If we insist on a Supreme Court, Civil Service Commission, and others in every state, the state will not be able to bear the expenses, and it will have to look to the centre. This will affect development works.

There is the issue of independence of the judiciary.
The judiciary cannot survive without being independent. There should be independent judiciary.

There is also the issue of the constitutional court?
Yes, the Taskforce has already accepted this. We cannot say where this will end after discussions in the CA. There should not be much problem the jurisdiction of the Supreme Court is not constricted and the constitutional court is led by the Chief Justice of the Supreme Court. However, if we cannot maintain an independent Supreme Court and the parliament controls and instructs it, then democracy will also be over. There is the provision of impeaching a justice through a two-thirds majority; which is also good.

There is the talk of demarcating the states now. Is this an attempt to usurp the powers of the centre to boss around by the states?
Even my fellow members in the Committee on Natural Resources, Financial Rights and Revenue Sharing wanted to take the powers of the centre to the states but not to the local governments. It was disheartening to hear their talks of giving authority to the local governments on an ad-hoc basis. This seems to be in human nature to empower oneself but not delegating the same authority to the lower levels.

Then is it that the centre and local governments will diminish and the states will expand?
At the moment, listening to many people and following their proposals might lead to such a situation, but there should not be like that. Therefore, the Committee has studied the experience and systems in place in federal countries and finalised the authorities to be retained by the centre, by the states, and the local government, and joint authority between centre-states, and states-local governments. At the moment, the CA members are representing the states and the centre in a way. There is no representation from the village. Therefore, there is some conflict while talking about rights sharing between the centre and the states. However, importance has not been paid to the local governments, which are the real bases of democracy. There should not be like this. This has arisen because the CA members are a worried about where their election constituencies will fall.

What is the relation between federalism and the right to self-determination?
First, the right to self-determination should be defined. If it means the works of the states including development works, then everybody will accept it. However, self-determination should not be defined vaguely. Does it mean the right to secede? As far as I know, no constitution in the world mentions the right to secede. Also, states should not be given any rights that might affect another state. It is important to be clear on the rights to self-determination of the states and the local government.
Right of self-determination is said to be the rights over the natural resources of a particular ethnic group in a state or local level. Suppose Tamakoshi demarcates two states. Now when we build a hydroelectric project in the Tamakoshi, talks of rights to self-determination will not suffice. The centre should have oversight over it. The centre should talk with both the states including affected village development committees. It is easy to say that the local community has preferential rights over water, land, and forest, but if we look at drinking water projects in the hills there are examples of water being transported from one village development committee to another or one ward to another. If my ward refuses through passage of drinking water, about 2000 people will be deprived of water. If we are not careful now, seeds of future conflict will have been sown.

Could you tell us about the revenue sharing between local federal units?
The Committee on Natural Resources, Financial Rights and Revenue Sharing has submitted a proposal regarding this, which calls for local level bodies which will provide benefits to the local people with ease. Why are states needed? For benefits. Why are regions needed? That is also for benefits. If the authority centred in Kathmandu now were to remain restricted to the states only, that would not solve any problems. Therefore, authority should not only be transferred to the states but also delegated to the local governments. The new local units should be able to provide necessary service to a citizen like citizenship, passport, birth and marriage records. It should have the authority to levy taxes on such services and to decide what portion should be sent to the centre. Some taxes will be directly collected by the centre, some by both the centre and the states, some by the states and local governments. Therefore, these issues should be clearly mentioned in the constitution. If it is not done and the authority of the centre is just transferred to the states only, then our envisioned federalism will not be successful. The people will not get services and they will oppose the constitution.

The issue of political preferential rights has also been highlighted lately?
In democracy, every citizen has the same voting rights. And there is no question of having unequal rights. If we cannot accept this, then we cannot meet our objectives. Also, who should be given preferential rights based on what? Political preferential rights cannot be given based on ethnic groups. Sherpas who migrated to Nepal 300 to 400 years ago are to be given preferential rights and Bahun/Chhetri who migrated to Nepal 1500 to 2000 years ago should not receive it? So what is its definition? What is the definition of indigenous population? What is the definition of ethnic groups? This will only raise discord between brothers. Therefore, preferential rights should be based on democratic value one person one vote.

By Dhruba Simkhada
Date of publication: June 18, 2011