Failed Attempts at Consensus

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The political parties put diverse opinions over the two issues, “form of government” and “election systems”. Moreover, the CA members belonging to the same party put different opinions at different times. For example, the UCPN (M) CA members, at first, spoke for the governmental system that allowed executive power to a directly elected president. They later argued that the members of the parliament should hold the power and have the rights to elect the prime minister. This was also the very agenda that UCPN (M) had campaigned for during the CA elections. However, the UCPN (M) changed its stand later as they opted for a form of government where the president could be elected and dismissed by the majority of the legislature. The UCPN (M) changed its views again. They opted for the direct election of the president and said there should be no “prime ministerial” system.

When President Ram Baran Yadav nullified the UCPN (M)-led government decision to sack Rukmangad Katuwal from the post of the Chief of the Nepal Army, the party reached a decision that there should be no prime ministerial system at all. The UCPN (M), apparently, understood that the prime minister and the president with equal power can bring complications in national politics.

The UCPN (M) could not stick to a single principle with regard to the election system too. In the beginning, it proposed that members for the Lower House must be elected on the basis of the size of the population. Similarly, members for the Upper House must be elected on the basis of equal representation from all states/provinces. Later, the UCPN (M) began to advocate for a “Multi-member Proportional Representation Election System”.

On the other hand, the NC advocated for a constitutional president and parliament-elected prime minister. The NC CA members stood for a mixed election system.

The CA members belonging to UML spoke for the constitutional president elected by the Council of the Parliament and an executive prime minister directly elected by the people. However, UML changed its view later.

Few hours before the Committee decided to hold a voting to finalise these issues, the NC and CA members reached a consensus. Moreover, the UML proposed that there should be no “no-confidence motion” against the prime minister for at least one year of his or her tenure to enhance a culture of political stability in the nation. The UML further urged for the provision that requires parties registering a “no-confidence motion” must also propose an alternative prime ministerial candidate. The NC subscribed to this proposition. Therefore, the UML stood for a prime ministerial system elected by the legislative parliament. Likewise, the NC also endorsed the UML proposal of “Proportional Representation Electoral System with Compensation”.

Tarai Madhes Loktantrik Party (TMLP) opted for the presidential system elected from the parliament. TMLP said that the party is “open” on this issue.

Voting Ultimately
The Committee for Determining Form of Government worked for fourteen months. It had to finalise several agendas by holding elections. The UCPN (M) voted for the executive presidential system and the “Multi-member Direct Proportional Representational Electoral System”. The NC and UML voted for constitutional president, executive prime minister and “Mixed Proportional Representational Election System”. The TMLP stood for a presidential system elected from the legislative and “Mixed Electoral System”.

Out of 42 CA members in the Committee for Determining Form of Government only 38 turned up on the day of voting.

Voting took place on each proposal submitted by the NC, Maoists, UML, and TMLP, and none of the proposals could garner majority votes. Only 18 members of the Committee supported the proposal put by the UCPN (M) whereas 20 of them voted against it. Similarly, only 16 members of the Committee voted for the proposal forwarded by the NC and UML whereas 21 of them voted against it. Finally, only 3 members of the Committee voted for the proposal submitted by TMLP, whereas 31 of them voted against it, and remaining members remained neutral. Thus no single proposal could garner majority votes. Therefore, the Committee found it impossible to decide on the official proposal. The UCPN (M) CA members argued that the proposal that managed to garner larger votes should be taken as the official proposal by the Committee. On the contrary, the NC and UML CA members argued that since no proposal could garner a clear majority, none of them could be considered as the official proposal and remained adamant on this claim.

The Committee went through some moments of critical crisis too. One particular incident must be mentioned here. As the Chair of the Committee, Shambhu Hajara Dusadh was about to read out the decision that the Committee had reached, NC CA member and Minister for Energy Dr Prakash Sharan Mahat snatched the paper off from the Chair’s hand. The UCPN (M) CA members condemned this behaviour of the Minister. The meeting ended without any conclusion. The UCPN (M) CA members demanded the Minister apologise to the Committee. At the end, an all-party taskforce was formed in consultation with the CA Speaker Subash Nemwang to settle the dispute. The Committee remained dysfunctional for a month. But only when the Energy Minister Dr Mahat admitted that he had no intention to humiliate the Chair of the Committee did the next meeting take place. The dispute got settled only when it was decided to include all the proposals submitted by the parties to be included in the report of the Committee.

Some members of the Committee, especially those representing UML, though had supported the proposal submitted by the NC earlier changed their stand by the time the Committee was about to submit its report to the Speaker of the CA. Four CA members from UML, Pradhyumna Prasad Chauhan, Ratna Gurung, Sonam Chhejung Lama and Hasina Miyan withdrew their earlier consent. They expressed their support for the governmental system where the prime minister gets directed elected from the people. Since they had already cast their votes earlier, this latter stand of theirs was invalid. Finally, the Committee submitted all four proposals to the CA on 21 January 2010.

System of One’s Own
The UCPN (M) proposed a form of governmental system that allowed executive rights to the president. The president as envisioned by the UCPN (M) could rule the country through and in consultation with the council of ministers under the existing laws and the constitution of the nation. The president, according to the UCPN (M), should be the head of the state as well as the government. He or she should also be the supreme chief of the army and symbol of the Nepali nationalism and national unity. He or she should remain guided to create optimum welfare and prosperity of the Nepali people. He or she should be accountable to Nepal, Nepali people, federal legislature, and the party he or she belongs to. The election for the president must be held once in five years through adult franchise. And finally, no single person can become president for more than two terms.

The governmental system proposed by the UCPN (M) has the following rights and privileges for the president:

a. The president will approve the bills, will have the rights to pardon the convicts after punishment is dispensed on him or her from different judicial and semi-judicial system, and the administrative officials.

b. He or she can reduce the period of such a sentence.

c. He or she will have the rights to award titles, honours and prises on behalf of the nation.

d. He or she will also receive foreign diplomats and representatives of different nations, receive the credentials of the ambassadors, and can present the certificate of honour.

e. He or she should consult the council of ministers while running administration of the country on a daily basis, in assigning the responsibilities to the ministers, in drafting functional regulations.

f. The president also needs to get approval from the council of ministers while nominating and appointing officials; mobilisation of the army; declaring war, peace, and emergency; presenting policy, plan, program and budget in the legislature; and issuing ordinances.

g. The president can appoint officials and members in the executive authority, ambassadors, special envoys, chief justices and judges, and governors.

h. He or she can strengthen foreign relationship, sign all treaties and agreements on behalf of the nation, present annual policies and plans, programmes and budget and announce immediate programmes. But while doing so, he or she has to get approval from the legislative parliament.

i. At least a two-third majority from the executive body of the party that the president belongs to can register the proposal in the legislative to call the president back. Provided that at least ten percent of the voters across the nation, as per the latest voters list, with their signature submit a call back file against the president in the Election Commission, the president must resign.

j. In case the president indulges in bad conducts or commits serious violation of the constitution, one-fourth of the total members of the legislature can file impeachment motion against him or her at the legislature. If the proposal is endorsed by a two-third majority of the legislature, the president will be dismissed from his or her post with immediate effect.

In contrast, the NC and UML proposed a governmental system that provides the president a constitutional and the prime minister an executive role. Both NC and UML agreed that the president should be the head of the state, and chief of the army. He or she will perform his or her duties and responsibilities according to the law of the land. The president should remain as the symbol of the Nepali nationalism, Nepali people and national unity. His or her chief duty will be to follow and protect the constitution and work for the optimum welfare and prosperity of Nepal and Nepali people. The Electorate Council formed out of the members from both Houses of the federal legislature and members from the provincial legislatures should have the rights to elect the president.

According to the governmental system envisioned by the NC and UML, the president has the constitutional rights to call and end the House session in the federal legislature. He or she too holds the responsibilities to approve bills passed by the federal legislature. He or she can appoint officials according to the existing laws of the land, receive certificate of honour from the foreign ambassadors and diplomatic representatives, and give away prises, honours and medals on behalf of the nation. He or she can also acquit those convicted by judicial, semi-judicial, administrative bodies and officials across the country. The president while exercising his or her rights needs to take approval and consent from the council of ministers.

The governmental system envisioned by the NC and UML provides executive authority to the president and the council of ministers. It states that the cabinet is entitled to direct, control and run the government system on a daily basis. Except for the functions specific to the president according to the constitution, all federal executive functions of Nepal will be performed in the name of the Government of Nepal. The president can appoint the leader of the parliamentary party that has secured the majority in the Lower House of the legislature as the prime minister whereas the prime minster has the right to appoint ministers.

According to the governmental system advocated by NC and UML, a no-confidence motion against the prime minister can be registered by at least one-fourth members of the Lower House of the federal legislature. And this no-confidence motion needs to be approved by a two-third majority of the members of the Lower House. With a view to promote a culture of political stability, the NC and UML have proposed that a “no-confidence motion” cannot be registered against the prime minister until the completion of one year of his or her tenure. And if the “no-confidence motion” against the prime minister fails to garner support of the majority, no such proposal can be registered for another year. When such a motion is registered, the outline of the alternative government with the prospective prime minister should also be offered. If no party gets a clear majority in the Lower House of the legislature, the president has the right to appoint the person who manages to draw support from two or more than two parties and is entrusted by a two-third majority of the Lower House of the legislature as the prime minster.

The TMLP came with the idea that the president should be both the head of the state and the government. As the head of the state and the government, the president can approve the bill or send it back to the House for reconsideration. He or she can call and end the session of both Houses of the legislature. He or she can appoint officials and members according to the laws of the land, and can call for a national referendum.

In addition, the President should hold constitutional rights to appoint ambassadors and diplomatic representatives, and can excuse and acquit the convicts sentenced by different judicial, semi-judicial and administrative bodies of the country. He or she can confer prises, honours, titles, medals, etc., on behalf of the nation. Thus executive rights lie with the president. He or she can direct and check the government in assistance from the members of the cabinet. All executive functions of the federal Nepal need to be issued in the name of the Government of Nepal.

According to the government system envisioned by the TMLP, a two-third majority of the members of the Lower House of federal legislature can choose the president. And in the cabinet there will be the president, vice-president, and other ministers. The president can be relieved from his or her position if he or she resigns, dies, or if the proposal of impeachment is passed by a two-third majority of the Lower House, or violates the constitution.

Differences over Election System
The parties differed widely over the election system that the country should follow in the future. The UCPN(M) opined that the election for the Lower House of the federal legislature should be held on the basis of “Multiple-member Direct Proportional Election System”, i.e., more than one candidate can be elected from a single constituency. The principle of proportional inclusiveness must be the criteria for selecting candidates. The number of seats for the candidates should be fixed on the basis of population size, geography, economic and social feature of the constituency. The voters in the constituency should have the rights to cast ballot according to the number of candidates.

As for the provincial legislature, the UCPN (M) proposed for a provision that secures ninety percent of the members elected on the basis of “Multiple-member Direct Proportional Election System” as well as allows a single candidate to contest elections from more than one constituency. Moreover, as part of the constitutional requirement, a party should nominate their candidates on the principle of proportional inclusiveness. Similarly, the number of candidates in the provincial legislature should be decided on the basis of population size, geography, economic and social features and realities of the constituency. The chief of the province on the recommendations of the party and experts should have the rights to nominate the remaining ten percent of the members of legislature. But while doing so he or she must nominate House members from marginalised, minority and isolated communities on the basis of the number of votes that individual party obtains in the election.

The NC and UML proposed that the members of the Lower House in the federal legislature should be elected according to the principle of “Mixed Member Proportional Election System”. They further state that the fifty percent of the total House members must represent women, indigenous, Dalit, Madhes and other class and communities as a matter of provision. And the number of candidates that a particular constituency can have should be fixed on the principle of proportional inclusion. Moreover, the NC and UML argue that in the election system of this type, the whole nation should be taken as a single “constituency”. Proportional representation of women, indigenous, Dalit, Madhesi and other communities should be based on an index system, i.e., total votes that the party draws in an election. The party that has won through the index system must gain at least three percent threshold votes from the total votes.

The NC and UML proposed that there should be 45 members, nominated from the provincial legislatures on equal basis, in the Upper House of the federal legislature. Such nomination must ensure a just representation of women, indigenous people, Dalit and Madhesi and other communities in the House. There should be a provision of nominating five members in the Upper House of the legislature from experts, especially those from minority and marginalised communities. And, this right should remain with the president. But while doing so the president must get recommendations from the prime minister.

The TMLP proposed that the Lower House of the federal legislature should ensure a proportional inclusion from women, indigenous people, Dalits, Madhesi and other marginalised and minority communities. The election for the Upper House of the legislature, the TMLP opines, too, should be conducted on the basis of proportional representation system. There should be a provision of granting three percent of total votes to the party that has been elected through the proportional representation system.

The Committee has defined issues that could not get settled through consensus as “different opinions” in its draft.

Consensus Issues
The report of the Committee reveals that though the parties differed mostly over the issue of “form of central government and election system”, they agreed on the process and modalities for provincial and local elections. They reached the consensus that conforming to the existing constitution and law of the land, executive rights of each province will inhere in the provincial council of ministers. In case of a state of emergency and state of no central government being in operation, the chief of the province can exercise the executive rights provided that the provincial executive body remains dysfunctional or non-existent. The parties also agreed that conforming to the existing law and constitution of the land, the responsibilities to direct, monitor, run and control the rule of the land also lie in the council of ministers of the province.

The preliminary draft report of the Committee states:

In each province, the province-chief should work as the representative of the central government.
The President, in consultation with the chief minister of the province, can appoint the province-chief.
The province-chief can call and end the session of the provincial legislature.
He or she can approve bills passed by the legislature, and can appoint provincial officials, and give away prises, medals, honours, certificate of recognition and so on.
He or she is entitled to lessen or excuse the punishments on the convicts given out the judicial and semi-judicial authorities of the province.
The chief minister holds executive power in the province. He or she can form and expand the cabinet.
The cabinet should consist of deputy chief minister, ministers and state ministers too. But the number of the ministers should not exceed 20% of the total members in the provincial legislature.
The Head of the province has right to appoint the chief minister.
The chief minister should be a member of the legislature and someone proposed and supported by all the parties in the legislature. Provided that he or she is unable to garner support from all the parties, the candidate for the chief minster can be chosen from the party that has majority in the legislature. Provided that no single party has majority in the legislature then the candidate for the chief minster should be chosen from consensus of two or more than two parties. If none of the members manages to draw a consensus, then the head of the province can appoint the leader of the largest party in the legislature as the chief minister. In such cases, the chief minister must manage to draw a vote of confidence from the provincial legislature within thirty days of his or her appointment.

The report of the Committee further states that as per the constitution and law, every executive right inheres in the executive of the local government. The executive body of the local government should consist of 5 to 10 members from metropolis, 5 to 9 members from sub-metropolis and municipality and 5 to 7 members from villages.

The parties agreed that if disputes arise between the central or federal government and one or more than one provincial governments over the issue of exercising executive power, the president or the prime minister can form a committee to solve out it. The parties also agreed to form a mechanism that helps the state services such as judiciary and civil service, parliamentary, health, and education services, and Nepal Army, Armed Police Force and Nepal Police and corporation services.

Meetings and Manners
The Committee started its works with discussion from small and minor to central issues. It was believed that consensus achieved on local and provincial issues will help the Committee to garner consensus on central issues. Therefore, the form of the government and election system for the local level was discussed in the beginning. Then the discussion on provincial government and election system took over. Though there were differences over provincial and local issues, the parties somehow managed to forge a consensus over the issue. But the parties had difficulty in forging consensus with regard to provincial legislature. Likewise, there was virtually no consensus over the issue of the chief minister as the UCPN (M) spoke for consensus while the NC and UML stressed for majority as the basis for electing the chief minister.

The Committee could not garner consensus over issues such as “form of government” and “election system” that Nepal must follow in the days to come. Discussions were held longer on “form of government” than on “election system”. But the UCPN (M), UML and NC never reached a consensus over these issues. Most of the time, the parties repeated the same arguments in the discussion sessions. The members of the Committee were committed more to their party ideology than on the culture of forging a consensus over crucial issues. The Committee even launched informal discussion with the second-tier leaders of the parties to garner consensus over the issues. But these discussions too were no different than the formal ones. The leaders remained inclined to their party stand. In the meeting held on 30 December 2006, UML CA member, Bishnu Paudel said, “there are lesser chances of gaining consensus over the issues, and time is running out. Now we should follow process”. Pampha Bhusal, UCPN (M) CA member, also held the same opinion. Pushpa Bhusal, NC CA member, stressed that the meeting of the CA should be given the right to decide over such issues.

This lack of consensus finally made the Committee follow the methodology of holding voting over issues. The NC and UML seemed more concerned about whether votes would be cast in their favour or not. Probably because of this concern, the Energy Minister Prakash Sharan Mahat was seen busy calling the CA members from his party until the last minute on the day of election (1st December 2006). Shyam Sunder Gupta of Sadbhawana Party came to the Committee for the first time at Mahat’s request. No proposal could get a majority in the election. That is why the Committee had to include all the proposals in its final report.

In the meetings of the Committee, one could see polarisation. The UCPN (M) CA members stood at one end while the NC and UML members stood on the opposite. During the discussion sessions, the NC and UML CA members were seen spending time and emerging in refuting and criticising the proposals of the UCPN (M) more than presenting their own stand and convincing the other members of the Committee. Similarly, the TMLP had its own stand. Its presentation in the Committee on the form of government was fair. It put the party’s vision clearly and well. The CA members representing small parties could not present their stands well.

The Committee met 55 times and discussions were held for 246 hours 50 minutes.

Conclusion
Most of the CA members in the Committee for Determining Form of Government stuck to their party lines. They were less motivated to reach a consensus and more keen on listening to what other parties had to say, and how they could be refuted and criticised. Almost all of them engaged in one-upmanship. The NC and UML CA members were bent on casting suspicions on the intention of the UCPN (M). They were keen on finding faults and refuting the agendas of the UCPN (M). Though the Committee members appeared enthusiastic over discussion sessions in the beginning, their participation in the latter days somehow lost the original vigour. They seemed to believe that consensus is a thing necessary among the top leaders first. But the leaders of the major parties could not reach a consensus over several issues, and as a result problems got bigger. Since there was no consensus among the top leadership, the Committee discussions were almost fruitless. In fact, the fruitless discussion of the Committee for Determining Form of Government is evidence of political uncertainty of this country.

Committee for Determining Form of Government

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The Preliminary Draft of the Constitution and the Explanatory Note

Committee for Determining the Form of Governance of State

Deadlock over Key Issues

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Committee for Determining the Structure of the Legislative Body has proposed two houses, namely house of representative and national assembly in the federal legislature which is known with the umbrella term parliament. There will be 151 members in the House of Representatives with 76 of them elected in first past the post election and 75 elected through proportional representation system. The committee has proposed that 76 constituencies should be retained to elect one each from the constituency in the house of representative

While choosing candidacy in proportional representation system political parties have to ensure representation, on the basis of ‘provincial closed index’ system, of women, Madheshis, Tharus, Oppressed caste, Dalits, Indigenous community, Muslim, backward class and region, and minority community taking into account the size of population. The committee also holds that at least one third of the total members in the house of representative should come from women. The committee report has proposed the tenure of the HR to be five years.

In National Assembly, on the other hand, there will be 51 members. Of them 13 members, at most, will be chosen from minority community, backward class in terms of religion and language, and nationally reputed experts, such members who have not had representation in the lower house of the parliament. They will be chosen through the principle of proportional representation and singe transferable voting system. They will be elected by the lower house. The draft report states that members will be chosen equally from each province as national assembly is mainly is the assembly of the province representatives. To be the member of the assembly the candidate has to be Nepali citizen, have attained at least 25 years of age for the house of reprehensive and 35 years of age for national assembly, should be eligible by all law, and should not be holding any office of profit any official designation and titles in the government level.

Privileges

The draft report has made the provision of privileges with the objective of letting the members entrusted by the people and representing them in the parliament to express their opinions and views freely and fearlessly without crossing the boundaries set by constitution. They use their conscience in making decision and casting vote. There will be complete freedom of speech in both houses of the parliament, and no any member will be subject to arrest, detention, and prosecuted in the law courts for the opinion expressed in the parliament or for the vote cast in the parliament. The committee proposed to put this provision in the privileges of constitution. The report also mentions that every house of the legislature parliament shall have full power to regulate its business, and it shall have the exclusive right to decide whether or not any proceeding of the legislature parliament is regular. No question shall be raised in any court in this regard. The report clearly states “ no comment shall be made about the good faith of any proceedings of the legislature parliament, and no person shall make or disseminate anything about comments or suggestions made by any member, deliberately misinterpreting or distorting their meaning.”

Likewise, the committee recommends, no proceedings shall be initiated in any court against any person for publication made under authority given by the legislature parliament of any document, report, voting or proceeding. No member of the legislature parliament shall be arrested during the session of the legislature parliament. But with regard to criminal accusation, any member on a criminal charge under any law, shall be arrested. But if any member is so arrested, the authority making such arrest shall immediately inform the person chairing the respective house immediately.

Any breach of privilege of any house shall be taken as the contempt of the parliament. The legislature parliament shall have the exclusive right to decide whether or not nay breach of privilege of the legislature has taken place. If anybody condemns the parliament the person chairing the meeting may, in accordance with a decision by the meeting to that effect, reprimand, warn or impose a sentence of imprisonment not exceeding three months or impose a fine of up to ten thousand rupees on such a person.

Province legislature

The committee has conceived of unicameral legislature in the provincial level. Provincial legislature will be called province assembly in which as many as 35 members can remain according to population size. 18 members come from direct election, 35 from proportional representation system. The committee proposes that in the province assembly a minimum of one third of the total number of the candidates shall come through direct and proportional representation system. To acquire membership of the province assembly the candidate has to be inhabitant of the respective province, should attain 25 years of age, should be eligible by law, and should not be holding any office of profit. It has been interpreted that ‘office of profit’ means any position, other than a political position, filled by election or nomination, for which remuneration or economic benefit is paid out of a government fund.

Four different opinions

17 CA members from Maoist, 3 from MJAF and 4 from UML have put their different opinion in the draft report of the committee. Devilal Thapa from UML has put his own different opinion. Maoists have objected to the name of the parliament itself. While NC , UML and other parties are contented with ‘legislature’ Maoists insist that it should be named Federal People’s Representative. The committee proposes bicameral legislature but Maoists have rooted for unicameral system. Maoists hold that there should be 151 to 250 members, of even number, federal people’s representative incorporating all from the centre. Federal People’s Representative is constituted by direct election first past the post system, on principle of multimember election system taking into consideration the principle of inclusive representation, on the basis of geography and population, with proportional inclusive representation of women, Dalits, oppressed communities/ indigenous groups, Madheshis and Muslim.

Those who have attained 16 years of age have right to vote. Candidate should attain 23 years of age to become the member of the assembly and 30 years of age to be the chairman and vice chairman of the assembly. Maoists also hold the provision, in their different opinion, of constituting a standing committee with representation of one member from each autonomous province and not exceeding 21 members from among the members of the federal people’s representative to carry out legislative function in absence of FPR meeting. Maoists proposed the members of province member to be minimum 25 and not exceeding 45 taking into consideration population of the province as opposed to committee proposal of limiting the members to 35. They also have mentioned the provision of calling the member back. After two years of being elected a member can be called back from his tenure in case he fails to represent his constituency. In demanding withdrawal of the member, at least 10 % of voters, in case of the party that takes initiative for this action is the same as the members belongs to, and 35 % voters in case of the initiative taken by other parties have to submit their demand with signatures.

Madhesi Jana Adhikar Forum(MJAF) opined that for the election of members of parliament constituencies in each province have to be determined on according to the size of population. Also only one member can be elected from each constituency. MJAF holds that the chairman of the national assembly should be the vice president. It also stands against the imposition of prohibition on discussion in its different opinion. The committee report has stated that no discussion shall be held in any house of the parliament on a matter that may adversely affect justice delivery, which is under consideration in any court of Nepal, and about anything done by a judge in course of performance of his or her judicial duties.

Yasodhadevi Adhikari, Julikumari Mahato and Sila Katila from CPN(UML) proposed to add the provision of 50% seat allocation to women in first past the post election for constituting house of representative. Likewise, Devilal Thapa (UML) has demanded that the constituting process of house of representative system should be made more clearly defined. The committee report has it that “there will be 151 members in the house of representative of which 76 members are taken from first past the post and 75 from proportional representation. The election house of representative shall be conducted through adult franchise and secret ballot.” Thapa demanded to add “ constituency shall be determined on the basis of proportionality of population and geography in determining each constituency” in the committee report.

The committee sat its first meeting on December 16, 2008. The meeting that lasted for two hours discussed about the election of the chairman, jurisdiction and terms of reference of the committee and its timetable. In a meeting held three days later on push 4, discussion had centered on the need of reference materials for the committee. In altogether seven meetings as of January 19, 2009, jurisdiction and schedule of the committee was discussed. During this period, the chairman of the committee was elected. From January 25 the committee began to take advice from subject experts. From January 25, the committee discussed with the committee members about the modality of questionnaire to collect public opinion. The next day the committee discussed on the need to constitute subcommittee to study the questionnaire. In the thirteen meetings that followed, questionnaires were discussed and suggestions were studied. Discussions were held on concept paper too during this period. Discussions on concept paper began on May 18, 2009. Eleven meetings thereafter were centered only on the discussion of concept paper. And the meeting of August 28, 2009 decided to submit the committee report to the constituent assembly. From the beginning to the end, there were altogether 50 meetings held in which 9 hours 45 minutes were spent in discussion.

Conclusion

In the committee meetings NC and UML proposed the system of bicameral federal legislature. As opposed to this, Maoists stood for the unicameral legislature. To that end the party put its different opinion too. NC and UML agreed to follow mixed election system for the parliamentary election. Maoist rooted for multimember constituency and proportional representation. Also it insisted on constituting one standing committee to carry out necessary functions in absence of house sessions. The main political parties could not strike consensus on the issues relating to the name, structure, number and representation of /in the parliament. Maoists introduced the features of oneparty system in the committee discussions. UML and NC insisted on the continuity of the past system. Maoist were more concentrated on establishing its influence over others. They argued that the constituencies have to be determined according to population size. After long deliberation and discussions, the committee could prepare the report regarding the determination of structure of legislative body. But still main parties stand at loggerheads over crucial issues on center and province.

Models of Federalism

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Academicians and leaders of different political parties have presented various models of federalism independently for discussion. Geographer Dr, Pitamber Sharma has proposed 6 federations and 19 districts . He has proposed 6 states: Purbanchal (eastern), Madhyamanchal (central), rajdhani (the capital), Paschimanchal (western), Karnali, Sudurpaschimanchal (far-western). He has given emphasis to availability of the natural resources and means. He has argued that federal structure should be built on the basis of possibilities of future development and the interrelation of the hills and the Tarai rather than on the basis of ethnicity.

on the issue of democracy, sovereignty of the people and development, he mentions three important issues for defining federal regions: “The first basis is the ethnicity and language, second is economic capacity and feasibility, and the third is interregional complimentary economic activity” (Sharma 2063:34-35). he further writes that economic potentiality of a particular region should be able to make the economy of the region dynamic and vibrant. He writes, “The key factor for this is the interdependence between the regions (Sharma 2063 -2007:35)”. In this way, Sharma has argued that the determination of federal regions in Nepal should be directed by the objective of regional development.

The political scientist professor Krishna Khanal has suggested that the determination of units of regional or federal rule on the basis of ethnic, language and cultural affinity. He has put forth the proposal of 14 election constituencies with multi-members. Basically, this proposal is focused on election and representation. Khanal has not pointed out categorically that this should be the regional or administrative structure. But later he has suggested that 10 to 13 such regions can be formed.

The Nepali Congress leader Narhari Acharya has proposed that regional structures can be formed on the basis of main rivers of Nepal by maintaining ethnic identity as far as possible. He has argued that the main regional language can be made the official language in addition to the Nepali language. Acharya has presented that the geographical location and convenience, language and cultural specialty, natural resource and economical feasibility and population density and ethnic mixture (historical settlements) as the bases while forming federal structures.

“The Tarai appears uniform due to geography, local dress, and climate but it is usually divided by major rivers, local language and dialects into five regions: 1) Mechi to Koshi, 2) Koshi to Bagmati, 3) Bagmati to Narayani, 4) Narayani/Gandaki to Rapti, and 5) Rapti to Mahakali. The new division of regions will be according to the geographical and natural division of the country. In addition, linguistic and cultural specialty should also be an important basis for determining the states. Apart from this, potential natural resource to enhance the economic viability of the region must be explored. (Acharya 2062:35)”.

The UML leader and central member Shankar Pokharel has put forward a proposal of 15 regions. he lists them: Tamor, Birat, Koshi, Janakpur, Sunkoshi, Simraungadh, Kathmandu, Narayani, Annapurna, Kaligandaki, Lumbini, Rapti, Karnali, Khaptad, and Bhawar. Different caste and ethnicities are majorities in these provinces: Birat (hill Brahmins 15%), Koshi (Rai 27%), Janakpur (Yadav 17%), Sunkoshi (Tamang 33%), Simraungadh (Muslim 16%), Kathmandu (Newar 36%), Narayani (hill Brahmin 21%), Annapurna (Gurung 28%), Kaligandaki (Magar 28%), Lumbini (Dalit 14%), Rapti (Chhetri 25%), Karnali (Chhetri 41%), Khaptad (Chhetri 54%), Bhawar (Tharu 35%).

He has made geographical location, ethnic density and settlements, use of mother language and other languages, socio-economic situation, economic relations and situation, administrative accessibility, availability of natural resources and means, and historical aspects as the bases for the provinces. Pokharel’s concept is similar to the UML’s concept. Another leader of the UML Rajendra Shrestha has brought the concept of 14 regions. Shrestha has made geographical accessibility, population, ethnic relation and socio-economic relation as the bases: Yakthung, Khumbu, Sesant (Tambasaling), Nepalmandal, Tamugandak, Magargandak, Bheri, Karnali, Mahakali, Koshi (Kochila), Janakpur (Mithila), Bhojpur (Simraun), Gautambuddhapur (Awadh), and Tharuhat.

Dr. Buddhi Prasad Bhandari has proposed 14 provinces. “It is appropriate to have five provinces in the Madhes that constitutes 17% of Nepal based on ethnicity, language, and regions, and 9 provinces in the hills and mountains. Instead of big east-west or north-south oriented provinces, smaller rectangular/square provinces will be easier to form based on ethnicity, language and regions and allow for easy access to the provincial centres. Reduction in the number of provinces based on economic consideration is not appropriate. These autonomous regions can independently manage their resources and through the centre can achieve economic prosperity” (Bhandari 2064:149).

Development expert Dr. Harka Gurung had proposed 25 development districts. Giving emphasis on economic viability, he has given importance to reduce the administrative expenses in his proposal. “The number of government offices in the districts has excessively increased. Apart from this, because of the extension road and air transport and telecommunication, the geography of Nepal has contracted in terms of access. It has become easier to run administration. It would be wiser to decrease the administrative expenses by reducing the number of districts” (Gurung 2006:184). he has suggested amalgamating two to four present districts into on in his proposal. The names of the provinces in his proposals are based on rivers (10), mountains (7), historical place (5), religious place (3).

Leftist intellectual Govinda Neupane has proposed eight provinces based on ethnicity. His proposed eight provinces incorporates the present districts: Kirant (Taplejung, Panchthar, Ilam, Tehrathum, Dhankuta, Sankhuwasabha, Okhaldhunga, Solukhumbu, Khotang, Bhojpur, and Udayapur), Tambasaling (Ramechhap, Dolakha, Sindhupalchok, Kavrepalanchok, Nuwakot, Rasuwa, Dhading, Makawanpur, and Sindhuli), Nepa: (Kathmandu, Lalitpur, Bhaktapur), Tamumagarat (Kaski, Lamjung, Manang, Gorkha, Mustang, Palpa, Tanahu, Syangja, and Myagdi), Khasan (Rolpa, Rukum, Salyan, Arghakhachi, Gulmi, Baglung, Dolpa, Pyuthan, Parbat, Jajarkot, Surkhet, Dailekh, Jumla, Mugu, Kalikot, Humla, Darchula, Baitadi, Doti, Bajhang, Bajura, Dadeldhura, and Achham), Tharuwan (Kapilvastu, Dang, Banke, Bardia, Kailali, and Kanchanpur), Bhojpuri (Bara, Parsa, Rautahat, Chitawan, Nawalparasi, and Rupandehi), and Mithila (Jhapa, Morang, Sunsari, Saptari, Siraha, Dhanusha, Mahottari, and Sarlahi).

He states that historical background (place of origin of different ethnicities), geographic feasibility, language use, and ethnic presence should be the bases for any federal province, which can bring into existence ethnic provinces. Neupane’s proposal gives more primacy to historical-cultural background and historical settlements besides ethnic presence and language use. Bhawani Baral’s proposal is not much different from Neupane’s. He proposes 11 provinces based on ethnicity, language/culture and regions. Mahendra Lawati also proposes ethnicity-based 13 provinces.

Mangal Siddhi Manandhar, Shobha Shrestha, and Pushpa Sharma have also proposed 12 provinces based on ethnicity and regions. “[…] federal restructuring should take into account ethnic/language density and majority, cultural and historical background, as well as regionalism as important bases. Geographic accessibility and economic capacity should only be taken as complementary factors. Geography does not have the same decisive role anymore as the reach of transportation and communication has increased more nowadays” (Manandhar et al. 2065:12).

Jana Morcha (People’s Front) leader Pari Thapa has proposed 9 regions: Khas/Khasan, Khambu/Khambuwan, Gurung/Tamuwan, Tamang/Tambasaling, Tharu/Tharuhat, Newar/Newa Khala, Magar/Magarat, Maithili/Madhesi, and Limbu/Limbuwan. He has said the bases should be ethnic population, local geography, and linguistic areas.

He later changed the number of provinces to 11. “On these bases (population, geography, and language), eight provinces in the hills including mountainous regions and three in the Tarai could be proposed for discussion” (Thapa 2065:131). His latter proposal of autonomous provinces include: Limbuwan, Khambuwan, Tamangsaling, Nepa:mandal, Tamuwan, Magarat, Khasan, Western Khasan, Mithila-Tharu, Bhojpur-Awadhi, and Tharuhat. The latter three lie in the Tarai region.

Kumar Yonjon Tamang has suggested 11 regions. Among them, he has defined eight provinces on the basis of ethnic population, land or region while the remaining three regions are formed as autonomous on the basis of linguistic area of linguistic dominance . The eight regions based on ethnic population, land, and region are Kirant, Tamang, Newar, Bhote-Tamuwan, Magarat, Tharuwan, Jadan, and Khasan. Similarly, the three based on linguistic dominance are Maithili-speaking region, Kochila-speaking region, and Bhojpur-speaking region. He has also emphasised the possibility of provinces based on regional oppression, though he has not given so much on emphasis on regional basis alone.

K B Gurung has proposed 11 autonomous regions and 6 autonomous areas. He has advocated for ethnic-regional autonomy in his proposal. According to him, the autonomous regions of Tamu(Gurung), Magarat, Tharuhat, Limbuwan, Khambuwan, Tambasaling, Newar, Far Western and Western Khasan are based on ethnicity and geography while Maithili-Tharu and Tharu-Bhojpuri autonomous areas are based on primarily language and ethnicity. Similarly, the basis for Awadhi, Maithili, and Bhojpuri-Bajji autonomous regions is language; Bhojpuri-Tharu also language and ethnicity; and Sherpa and Rajbangsi autonomous areas are based on ethnicity and geography.

“The central structure of the nation should be semi-federal consisting of the feature of both unitary and federal state and should be all-inclusive and participatory. The main basis of such structure should be ethnic-regional autonomy. […] The structure of ethnic-regional autonomy should be considered the basis of state restructuring for the full autonomy of all castes, ethnic people, language groups, region and communities in their respective areas” (Gurung 2062:91).

Analyst Shyam Shrestha has suggested a maximum of 15 autonomous regions and defined four basic conditions and bases: “ethnicity or language density, geographic proximity, administrative convenience, and availability of natural resources” (Shrestha 2065:42).

MJF chairperson Upendra Yadav has stated that Nepal could be restructured into seven provinces. “the region east of Sunkoshi could be one and there have been proposals to call it Kirant. Karnali could be one province, which has been oppressed for centuries and if the people have access to their natural resources, their condition could be ameliorated. Other provinces could be centred around Pokhara, Kathmandu, and others, and this will be finalised through extensive discussion in the Constituent Assembly” (Yadav, 164). Amaresh Narayan Jha has proposed four regions and 10 administrative units. According to this proposal, in the Madhes region, there will be Birat, Mithila, Kapilvastu, and Awadh; North-eastern will include Kirant, Sailung, and Trishuli; Kathmandu will be separate; and North-western will include Dhaulagiri and Karnali.

He argues, “by defining Madhes and Kathmandu valley and the rest of the hilly regions into eastern and western regions would be appropriate. Based on language and ethnic majority and glorious history, Madhes could be restructured into Birat, Mithila, Kapilvastu, and Awadh administrative units; Kirant, Sailung, and Trishuli administrative units in the eastern hills; and Kathmandu will be a separate administrative units with due respect and place for people of all ethnicity, indigenous and language groups. Thus, it would be appropriate to restructure Nepal into North-eastern, North-western, Madhes, and Kathmandu regions with 10 administrative units” (Lal, 68).

Paramendra Kumar Bhagat has proposed three provinces based on the major river basins. He has proposed Koshi, Gandaki, and Karnali provinces with Udayapur, Chitawan, and Surkhet as the provincial capitals.

For detail see Mulyankan Monthly

Working paper of Prof Khanal presented in “National Peace campaign’ in Pokhara

Shrestha’s article for detail

Fragile districts :futile Decentralization by Harka Gurung

In this, language and ethnicity of autonomous region and ethnicity and geography are the main bases.

Khas/Khasan, Khambu/Khambanuwan, Gurung/Tamuwan, Tamang/Tamsaling, Tharu/Tharuhat, Newar/Newa/ Khala, Magar/Magarat, Maithili/Madhesi and Limbu/Limbuwan are proposed by him.

Basic aspects of Tamu (Gurung), Magarat, Tharuhat, Limbuwan Khambauwan, Tamsaling, Newar, Far west Khas autonomous regions are ethnicity and geography.

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 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.