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Proposal to Double the Existing Constitutional Bodies

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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 organs to perform its work freely without interfering in others’ jurisdiction and without being interfered. 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 envisioned 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 bodies in the past.
The Constitution of Nepal 1990 had made the provisions of Commission for Investigation of Abuse of Authority (CIAA), Public Service Commission, Election Commission, and Auditor General. But the 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, the 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, Madhesi Commission, and Commission on Protection of the Rights of Minorities, Marginalised Communities, Disabled and Backward Class and Region. To bring a 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 corruption, the CIAA has taken many measures in this period. But corruption in the country has not lessened, it is growing. The CIAA has been charged of having been made ineffective 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 a Commission for Investigation of Abuse of Authority to make the officials holding public positions more accountable toward people, and to work as an agency to lead their activities for the people’s good. The report holds that such a commission is needed for the state. Such a commission investigates whether the officials under constitutional and law authorities are misusing and abusing the authority that they are given and thus causing harm 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, the 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 the Public Service Commission (PSC) has been seen to work successfully and effectively. It is in the leading position in performing work fairly. The 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 the 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, the Election Commission should be recognised as a constitutional body. Since the beginning of the constitutional exercise, constitutional practices like preparing voters list, monitoring, regulating, controlling, and holding an election have been realised through an independent election commission. Therefore, the Committee has acknowledged the Election Commission as a body to conduct free and fair election in the new constitution.

The role of the Human Rights Commission has multiplied in the transitional political situation and especially after the United Communist Party of Nepal–Maoists (UCPN-M) joined the mainstream politics by renouncing armed rebellion. Though the Commission 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 abusers are escaping also because of the decision made on the basis of political expediency. 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 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.
The 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 a constitutional body in the new constitution. The report of the Committee asserts that constitution of Federal Women’s Commission is necessary to bring and assimilate women into the mainstream of development by protecting and 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 them into the mainstream effectively, to ensure overall development of Dalits and to ensure justice to them, a constitutional provision of Federal Dalits Commission is desirable. The Committee is committed to this provision.

As for the need for the institution of the 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 the indigenous community and Janajatis 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 marginalised community, backward class and region, to bring 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 a commission on Protection of the Rights of Minorities, Marginalised Communities, Disabled and Backward Class and Region. Similarly, the Committee report says, to protect the rights of Madhesi Community, to bring and adjust them into the mainstream development, to ensure their overall development and to guarantee social justice to them, constitution of a Federal Madhesi Commission is desirable.
The Committee report says: to protect the rights of Muslim community, to bring them into the mainstream development, to ensure their overall development and to guarantee social justice to them, constitution of a Federal Muslim Commission is desirable. Principles of inclusiveness and proportional representation should be taken into account while appointing official in the constitutional commissions. The Committee proposed to make arrangement of constitutional bodies in the provinces as well.

Only Two Different Opinions
CA members Meena Pun of Rastriya Janamorcha (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 the concept paper. Her proposal says, “Our party National People’s Front is opposed to the country going into federal system. The preliminary draft reports and the concept paper prepared by this Committee mentions that the constitutional commissions 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 on the structure of any constitutional body.

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

The Sadbhawana Party suggested putting the Commission for Investigation of Abuse of Authority, the Public Service Commission, the Election Commission, the Human Rights Commission, the Police Service Commission, the Auditor General, Inclusiveness Commission, the Labour Commission under the structure of constitutional bodies. The Party also proposed to form commissions on minority, Dalits, indigenous community, marginalised Muslims, women, Madhesi, and backward class. The Communist Party of Nepal (ML) suggested forming the Commission for Investigation of Abuse of Authority, the Public Service Commission, the Election Commission, the National Human Rights Commission, the Auditor General, and the Inter-province Relation Management Commissions. Communist Party of Nepal (United) proposed the Commission for Investigation of Abuse of Authority, the Public Service Commission, the Election Commission, the National Human Rights Commission, the Auditor General, the National Land Commission, the National Dalit Commission, and the 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.

The Nepal Workers and Peasants Party proposed to recognise the Commission for Investigation of Abuse of Authority, the Public Service Commission, the Election Commission, the National Human Rights Commission, the Auditor General, the Peasants, Labour and Women Commission, and the Attorney General. The Chure Bhawar National United Party-Nepal and the Socialist Democratic People’s Party-Nepal suggested the Commission for Investigation of Abuse of Authority, the Public Service Commission, the Election Commission, the National Human Rights Commission, the National Auditing Commission, and the Commission on Provincial Affairs. The 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 Pariwar Dal had proposed to form the Commission for Investigation of Abuse of Authority, the Public Service Commission, the Election Commission, the National Human Rights Commission, the National Auditing Commission, the Inter-province Affair Commission, the Youths, Women and Children Commission, the Dalit Commission, the Cross-religion and Cross-cultural harmony Commission.

The Committee for Determining the Structure of Constitutional Bodies met 54 times. Over 191 hours were spent in discussion about the constitutional bodies in the meetings. It was indeed a challenge to decide which of the proposed and recommended commissions to be recognised as constitutional and which not. To recognise 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 in itself. Important thing is their accountability, fairness at work and their implementation. A 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 name of the commissions diminishes. A body should not be formed simply on demand and 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 calculations. This could give rise to converting those that have worked in close proximity and in favour of one’s political parties as officials to the commissions as a reward for their political loyalty. Though there is special modality for appointment in a constitutional body, there is a culture of appointing officials in the commissions 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 commissions and may remain just commissions.

Judicial System Committee

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Members belonging to the CA Judicial System Committee had major disagreements over issues such as relationship between the legislative parliament and judiciary, forms of judiciary and provisions for appointing and dismissing and transferring judges. The Committee tried to garner consensus time and again but in vain since it found its members articulating their party ideologies rather than focusing on the core issues. That is why the Committee finally developed a concept paper that included all contradictory opinions and submitted it to the Speaker of the CA on 9 August 2009. Thereafter, on August 13, 14, 15, 16 and 17 Assembly meetings, a number of CA members discussed over the report.

When the UCPN (M) members of the Committee were about to submit a draft report that would principally be against the norms of independent judiciary, the Committee got into deep trouble. Such attempts of the UCPN (M) brought divisions not only among the Committee members but also in the Constituent Assembly and outside. Nepal Bar Association, through a press release, threatened to go into a nationwide protest if the Constituent Assembly decided to go against the independent judiciary. Thus the whole nation got divided into for and against the judicial system of federal Nepal. The UCPN (M) seems to be in favour of controlling the entire judiciary through a special parliamentary body. For this, they cited several ill practices that the judiciary in Nepal has committed in the past. Whereas the NC, UML and other parties argue that judiciary system needs to remain autonomous and independent.

It is believed that all three organs of the government, the legislative, the executive, and the judiciary, need to function in a check-and-balance manner. And each should function independently as well. Thus the UCPN (M) was blamed for speaking of democratic political norms only in principle but not practicing it. The opinions put by the UCPN (M) in the Committee for Determining Structure of the Legislative Body made many believe that they are determined to keep both the executive and the judiciary under the control of the legislative. In a way it wants to control everything through the legislative—a system practiced by the People’s Congress in the People’s Republic of China.

Ambivalence abounds. The UCPN (M), on the one hand, does not want to follow the parliamentary system but, on the other hand, wants to make the legislative parliament as a supreme body. This double standard of the UCPN (M) is often taken as strange, contradictory and unusual politics. The UCPN(M) on the one hand say that they “do not conform to the parliamentary system” but on the other hand they are found advocating a need for making legislative parliament as powerful as the British parliament, which is supposed to be powerful for anything except changing people’s sexes. Similarly, the UCPN (M) advocates parliamentary supremacy but does not want to hear the word “parliament”. On January 15, 2007 at a time of forming the interim parliament, the UCPN (M) insisted on calling the parliament the “Legislative” whereas Nepali Congress stood for the term “Parliament”. This brought some debate. So the hybridised form of the parliamentary system was coined as the “Legislative-Parliament”. How strange it must have sounded to the British! The UCPN (M) did not bother to understand that “parliament” and “legislative” both refer to the same thing. It looks as if the UCPN(M) intends to defame the parliament by defining, as Lenin did through a maxim, that parliament is where you show goats’ head and sell dog’s meat.

Who Interprets the Constitution?
The report of the Committee states “except for the issues relating to the position and rights of national importance, subjects directly associated with country’s politics, and issue in which law contradicts with the constitution, the right to interpret the constitution and federal law rest with the Supreme Court. But for this sub-clause, position of national importance shall mean Head of the State, or executive chief or the position endorsed by the legislative parliament”. This clearly shows that the UCPN (M) wants to keep the judiciary under control of a special committee of “people’s parliament” as envisaged by them. However, it could be one of the problems of their “competitive politics” too. If they embrace the democratic system fully, they might face the question; what is the use of the ten-year long armed struggle? This question can even be so damaging as to be the end of their political career. On the other hand, they also face the danger of being labelled “traditional communists” if they do not endorse at least a few principles of democracy and global liberalism. Because of this fear, they seem to have fallen in the whirlwind of uncertainty. The chief cause of the complexity and restlessness of the UCPN (M) is the same uncertainty and lack of clarity.

Provisions such as controlling the judiciary by special committee of “people’s parliament”, appointing the Chief Justice of the Supreme Court and other judges even from other disciplines and sending judges for research and investigative works for a certain time can make the entire judiciary system or body a puppet. Questions abound. How can judges, who are not supposed to take part in any parties and profit-oriented business, be expected to deliver fair justice to the people if they are mobilised in other disciplines? This is a profound question in justice delivery system. It is less likely to protect constitutionalism either. It is self-contradictory to restrict the judiciary by appointing, promoting and transferring the Chief Justice and other judges of the Federal Supreme Court by the special judicial committee formed under the federal legislative.

The judiciary, never the legislative, holds the right to interpret the country’s statute. Nineteen members from NC and other parties expressed different opinions in this regard. They agreed that the judiciary should be kept as an independent body and judges should be appointed by one single mechanism from the centre across the country. If the judges are appointed only through this mechanism from the centre, there will be a possibility of creating uniformity in the judiciary, and it could help the nation to create the manpower needed for the Federal Supreme Court and to ease the process of transferring judges within the country a flexible system.

Thus, almost all UCPN (M) CA members seem to be repeating the same contradictory opinion doggedly. The members who contradict the UCPN (M) stance point out that there is always a possibility of instability and loss of reliability of the judiciary if the system of appointing Chief Justice out of the judicial body is endorsed. It appears that appointing the Chief Justice on the basis of seniority and experience from among the judges of the Federal Supreme Court is the only practical solution.

Proportional and Inclusive Issues
The Judicial System Committee has recommended that the Chief Justice must be appointed on the basis of inclusive and proportional representations. But question abounds. How can this modality function when the Chief Justice is always a single position? However, proportionalism and inclusiveness can be the modalities of appointing judges for the Federal Supreme Court. But it is unfortunate that the CA members could not reach a consensus on this issue too.

Promises the Parties Made
The political parties had already made their agenda about the judicial system of the federal Nepal public during the CA election. In their commitment letter, the UCPN (M) had stated to restructure the judiciary so that it could function independently. Moreover, during the insurgency period, the then CPN (Maoists) had run “people’s court” in villages to punish their political opponents. The proposal submitted to the Committee by the UCPN (M) speaks for a judiciary system that is controlled by a special legislative parliament body. Moreover, it speaks for a provision that offers the option to appoint the Chief Justice even out of the judicial body. It states that the in-service judges can be assigned other responsibilities if the government wills so.

The NC and UML have not withdrawn from their commitments which they made to the people about the system of future judiciary during the CA election. These two parties had vowed to protect the democratic norms and values, rule of law and constitutional supremacy. Likewise, Madhesi People’s Forum Party has also shown support for constitutional supremacy and rule of law.

UCPN(M) and UML Unclear on the form of Government

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In the beginning, UCPN(M) was in favour of directly elected executive president and went to the CA election its election manifesto declaring, ‘President from directly elected system and prime minister from the election from parliament members. The tenure of president and prime minister would only be for two terms (Declaration Paper, CPN Maoist, February/March, 2008: 14)

That concept was submitted to the Committee for the Determining the Form of Government but after the party’s central committee meeting decided to go for elected executive president from the parliament. Then UCPN(M) tone changed in the Committee. the UCPN(M) wrote a letter requesting to keep old concept of Maoist. After the UCPN(M) left the government, again it raised the issue of directly elected president in the Committee meetings, which severely impacted the work of the Committee.

at the same time, the third largest political party CPN(UML) is in favour of directly elected prime minister through the parliamentary system and had submitted the same concept paper in the Committee. But claiming the politburo decision, some UML leaders in the Committee supported Nepali congress’s proposal of prime minister selection from the parliament in order to get support for its own proposal of electoral system and cast vote in favour of West Minister model of parliamentary system. But while signing on the Committee report, Ratna Gurung and other four members refused to sign due to UML’s internal conflict, then the dispute reached upper level. The dispute was between the party chairperson Jhalanath Khanal and Bishnu Prasad Paudel of K. P. Oli camp.

The chairperson of UML, Khanal explained party position in favour of directly elected prime minster as mentioned in the election manifesto but Paudel countered that party’s decision is the one as cast in the Committee. Then that dispute was not only limited within the party and parliamentary committee, it reached the full meeting of CA, and CA members speaking in the Assembly were also divided in two camps. Though this did not have the same impact as the UCPN(M) repeatedly changing concept paper in the Committee, it affected the signing on the report at the end. Therefore, the discussion in the CA is not only in the constitution-drafting process, but it has also been witness to internal disputes and conflict of political parties.

Madhes-based Madhes Janadhikar Party has introduced the directly elected executive president in accordance with its election manifesto. Another Terai-based political party Tarai Madhesh Loktantrik Party has mentioned in its election manifesto that “parliament will elect prime minister and form a government after getting a vote of confidence from the parliament”. regarding the head of the state, “The election of the president would be from both houses and provincial parliament. The president will be the head of the state and his role would be mostly ceremonial”. But at the time of proposing this concept in the Committee, it got only 3 votes from 38 members in attendance from Om Prakash Yadav, Chandan Shah, Brij Kumar Gupta.

Same Drama in the Assembly

In the Committee, only a few CA members presented their independent and different opinion outside of the political party line and political whip, while majority of them toed the political party line whether wrong or right. NC and UML CA members were seen to use of their own conscience rather than political party whip. Among seven members of the Committee, Pradip Giri alone was in favour of the directly elected prime minister while other NC members were on the favour of directly elected executive prime minister from the parliament. Also, Bishnu Paudel was in favour of elected prime minister from the parliament accordance to the vote in Committee, disregarding the line of party chairperson and leader of the parliamentary committee Jhalanath Khanal.

In the assembly, UCPN(M) vice-chairperson Dr. Baburam Bhattarai said the West Minister parliamentary model cannot balance power and the directly elected president can balance the power centres. In the presidential system, power centre will not be divided and power struggle will end and government can get sustainability. Even chairperson Prachanda was present there to hear this speech. In the counter of that statement, Minendra Rijal, Minister of Federal Affairs and central member of Nepali Congress said, “We are not demanding improved monarchy in the name of executive president”. He cautioned that centralised power can create another dictatorship.

Nepali Congress leader Pradip Giri was present to hear Dr. Baburam Bhattarai’s speech, and Dr. Bhattarai was also during Pradip Giri’s speech on suitable governance system. In his different opinion, Giri asserted that the UCPN(M) do not want presidential governance system like in the U.S.A. but rather a unique presidential model. He said that to understand the presidential system of America would be impossible without understanding political system, role of the opposition, the rights of lower and upper houses, relative power of the states, and constitutional provision of all-powerful Supreme Court. Therefore, in the opinion, the UCPN(M)-presented presidential model could bring in another dictatorship. Giri said that model or system and already failed model of West Minister system could not function in Nepal, thus directly elected prime minister and parliamentary system is appropriate in the context of Nepal.

The meeting of this Committee was not boring like other committees because parties’ senior leaders’ presence seemed to provide additional energy to the meetings although the CA members could not rise beyond the party lines. on the whole, mixed electoral system would be suitable to cover the diverse pluralism of the nation that would elect either the president or the president directly.

Box:
What is multiple member electoral system?

The UCPN(M)-proposed ‘multimember electoral system’ gives unequal rights on the Nepali voter which is not democratic nor is it necessarily a party-less system. Till 1990s, Japan followed multiple member constituency and first-past-the-post electoral system, but people only cast a single vote and this became a problem. For example, if any constituency has seven seats, any party can field seven candidates but voters can cast down vote only for a single candidate. Is this system is desirable? It is very risky. For example, in the case of Kathmandu, there are 10 seats and voters can cast only one vote, the parties would not be forced to field all 10 candidates and may only field 2 or 4 candidates based on their probability of winning. Japan had experienced the same but now has shifted to single member constituency system.

Status of Committee members

UCPN(M) Male: 13 Ashok Kumar Rokaya Chhetri, Buddhiram Gurung, Ghanashyam Yadav Ahir, Girirajmani Pokhrel, Keshab Rai, Nagendra Bahadur Dhimal, Narendra Bahadur Kunwar, Naresh Bhandari, Santa Kumar Tharu, Satyalal Mul, Tej Bahadur Mijar, Tekendra Prasad Bhatta, Top Bahadur Rayamajhi
Female : 6 Durgadevi Paswan, Kumari Moktan, Pampha Bhusal, Shusila Kandangwa, Parbati Thapa ( Shrestha), Yashoda Gurung (Subedi)
Nepali Congress Male : 6 Ajaya Kumar Dwiwedi, Ganesh Bahadur Khadka, Jipchhiring Lama Sherpa, Pradip Giri, Dr. Prakash Sharan Mahat, Shambhu Hajara Dusadh (chairperson of the committee)
Female : 2 Pushpa Bhusal, Sita Gurung
UML Male : 4 Krishna Prasad Sapkota, Gobinda Nepali, Pradumna Prasad Chauhan, Prithvi Subba Gurung
Female : 3 Hasina Miya, Ratna Gurung, Sonam Chhejung Lama
MJF (Madheshi Janadhikar Forum) Male : 2 Laxman Mahato, Om Prakash Yadav
Female : 2 Durgadevi Mahato, Salama Khatun Mikrani
TMDP Male : 2 Brijeshkumar Gupta, Chandan Shah
RPP Male: 1 Alauddin Ansari
CPN (ML) Male : 1 Yadubansha Jha
Sadvawana Male : 2 Saroj Kumar Yadav, Shyamsundar Gupta

The Form of Government: Crucial Issues Facing the CA

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After the CA elections, debates and discussions were started in Nepal regarding the model of governance system. The political parties, intellectuals, journalists, and civil society have made their opinions public on the governance system. A number of people are still advocating the Westminster model of parliamentary governance system, but a number of other are arguing Westminster can no longer address people’s aspirations and there is a need to shift to the model of directly elected executive president. Those advocating a middle path are in favour of directly elected prime minister and an elected president through the provincial legislative-parliaments. A small number of people opinions are in favour of a consensual model. Therefore, the Committee for Determining the Form of the Government has responsibility to determine the future governance system. However, this Committee has not even been able to complete a draft proposal.

The Committee for Determining the Form of the Government was the 10th to present its concept paper and preliminary draft report out of the ten thematic committees in the CA. Prior to this, other nine thematic committees had submitted their drafts in the full meeting of the CA. On January 18, 2010, Committee chairperson Shambhu Hajara Dushad submitted the report to the CA chairperson for discussion in a full meeting of the CA on the 13th January. The draft is accepted for discussion in the full meeting after 48 hours of submission in the CA. Then, from January 24, 2010 onwards, CA members expressed their opinions on the draft report of this Committee.

The main priority under the Committee’s responsibility and jurisdiction was to determine the forthcoming governance system of the state. In addition, the responsibility of the Committee included deciding on the electoral system, structure of various levels of governments in the federal system, interrelationship between the federal states, province, and local governance, and identify the method and mechanism to resolve the possible obstacles in the federalism.

For that purpose, the Committee formed two sub-committees; the draft preparation sub-committee under the coordination of Krishna Prasad Sapkota was assigned to decide the nature of governance system and structure, structure of executive organs in various levels, division of authority as well as interrelationship between various levels of the government. Another sub-committee under the coordination of Naresh Bhandari was assigned to decide on the electoral system, public service commission and procedures and bases of good governance. (The meeting of April 9, 2009, was postponed due to lack of enough members to fulfil the quorum). The Committee also formed task force for consensus building.

The Committee could not prepare its draft report even after 77 rounds of meeting. The Committee remained undecided and was stuck in a dilemma even after voting between the Committee members was not able to get a clear majority. At the end, the compromise was reached to include all the proposals by also forwarding the receiving votes. Then, the full meeting of the Assembly discussed on that report.

The Minister and Committee Chair not on speaking terms

On December 1, 2009, the Committee organised a voting to decide the official report of the Committee on the governance system. The directly elected presidential system and multiple‑member direct proportional electoral system proposed by the UCPN Maoist, and Nepali Congress- and UML-proposed mixed electoral system and majority elected prime minister from the parliament and elected president by the legislative-parliament failed to get a clear majority in the Committee election. Then the CA members were divided in two camps; one camp insisted that the proposal receiving maximum votes should be the official one, and the second proposed that in the absence of a clear majority there could no official one, then the dispute started in the Committee. During the dispute, Dr Prakash Sharan Mahat, Energy Minister, snatched the proposal from the hand of the Committee chair Shambhu Hajara Dushad while he was about to read it. Then, the meeting was postponed.

The Committee meeting could not take place for two months, and even communication between minister Mahat, a member of the Committee, and the Committee Chair came to a halt. It was expressed informally by the Chairperson that the Minister would not even receive his calls. The meeting was not held when the CA members of UCPN (Maoist) took a stand on Minister Mahat’s apology as a pre-condition for sitting in the meeting. Finally, the door was open for preparation of a draft report by making compromise on including all the proposals in the draft report and Minister Mahat also gave his statement that he had no intention of overstepping the jurisdiction of the committee, but he had simply opposed the move of the Chair as it was introduced all of a sudden without prior notice.

In the CA Regulation, it is clearly mentioned that in the case of failure to reach a consensus, the majority of CA members can decide on any theme. However, there is nothing mentioned in case of proposals not getting a majority during the voting. The dispute emerged in the Committee for the Determining the Form of the Government due to no proposal getting a clear majority. Although during the election in the Committee for Determining the Base of Cultural and Social Solidarity for words referring to the “people’s war” or “armed conflict” for the decade-long Maoist insurgency, this issue did not come up. The proposal receiving the maximum votes was included as official in the report of the Committee, and all other proposals were included as the different opinions.

Voting and its consequence

During voting of this Committee, UCPN (Maoist) had garnered 18 votes in favour of presidential governance system with executive rights out of the 42 members, which was not a majority. The UCPN (Maoist) submitted a proposal locating the president as the symbol of nationality and Nepali people as well as head of the state, head of the government, and the supreme commander of Nepal Army. Moreover, their logic is that the president with a duty of protecting and implementing the constitution has to be accountable towards the Nepali people, federal legislative-parliament and own political party.

Though it seems appropriate that the president is a symbol of unity with responsibility towards the Nepali people and federal legislative-parliament; however, the president’s loyalty to own political party is questionable on the grounds of neutrality on governance as well as in the administration. Such type of presidency will be all powerful and against the theory of balance of power. Therefore, in a country like Nepal with its unique geopolitical setup and diversity in language, caste, culture, a powerful president may not be suitable in terms of theory of inclusiveness.

The UCPN (Maoist) proposal has the provision of recalling the president by the party with a provision that two-third members of the central executive committee can submit the withdrawal proposal against the president in the legislature-parliament. In addition, 10% of registered voters from the last election can submit a proposal to recall the president.

The cabinet should be formed on the consensus of all the parties represented in parliament because if all the power is concentrated in the hands of the winner, there will be unhealthy competition for power and the country will always be heading towards conflict. However, the president will not be bound to include in the council of ministers those parties that have received less than 5% votes in the election. The UCPN (Maoist) has forwarded a multiple-member direct proportional electoral system.

the Nepali Congress- and UML-proposed directly elected prime minister through the legislature-parliament and ceremonial president also could not get a majority even with 16 CA members from both parties in the committee and it could not be registered as the official draft of the committee. They fear that all executive powers with one person can give rise to tyrants and instead proposed that the executive powers should like with the president and the council of ministers as per the constitution and other laws. They have proposed to limit the number of ministers in the council of ministers 25 and also that one-fourth members of the lower house have the rights to register a motion of no-confidence on the prime minister; however, such proposal cannot be submitted within one year of the prime minister selection and another year of failed no-confidence motion. They prefer the mixed electoral system.

The Committee has registered proposal of the Terai Madhes Loktantrik Party, which proposes an executive president and had received only three votes and a different opinion of NC leader Pradip Giri who has advocated directly elected prime minister and a constitutional/ceremonial president elected from the parliament. If Giri had not submitted his different opinion in the draft committee, there would not have been any different opinion. Thus, it could be said that this draft report is a pile of different opinions.

There will be provincial chief who will be appointed through the consultation by the president with the chief minister of the province. The committee has proposed three levels of government: federation at the centre, province in middle, and the local government at the local level. However, the local government can use its authority in coordination with provincial and federal government. In addition, the Committee has mentioned the interrelation between various levels of government, good governance, formation of public service, and electoral system of provinces and local bodies.

The UCPN (Maoist) has proposed that 90 percent of the members in the provincial legislature-parliament should be through multiple-member direct and proportional electoral system and the other 10 percent from minorities including marginalized, endangered community as well as people who have made significant contributions to the nation. However, Nepali Congress and UML have advocated for mixed proportional electoral system in the case of provincial legislature-parliament. The three CA members from Madhes have demanded bicameral legislature-parliament in the provinces as well. According to them, the electoral system of lower house should be on the first-past-the-post electoral system based on inclusive philosophy and the electoral system of the upper house should be based on the votes garnered by the party in the lower house.