Contention Issues in Constitution-Building Process

The term of the CA was extended for one year on May 28, 2010, to resolve differences among the political parties. A sub-committee to study reports and make suggestions was formed under Laxman Lal Karna. When he became a minister, Agni Prasad Kharel became the coordinator of the sub- committee. The sub-committee prepared a list of 210 contentious issues after 8 months of studying the reports from different committees of the CA.

A high-level working group was formed under Pushpa Kamal Dahal as coordinator to resolve the 210 contentious issues pointed out by the Kharel-led sub-committee. This working group was able to sort out 127 out of the original 210 issues. While consensus has been reached in some of them, some of them have been set aside to be settled later even among the 127 settled issues. These issues of disagreements later came down to 83, and now there are still 21 outstanding issues to be resolved.
Issues Requiring Consensus

Issue	Party Positions
Issue	UCPN(M)	Nepali Congress (NC)	CPN(UML)	Tarai-Madhes-focused parties	Others
Form of government	Directly elected presidential system	Executive prime minister elected from the parliament with constitutional president	Executive prime minister elected from the parliament with constitutional president¹	President elected from the parliament (TMLP)
Formation of the Council of Ministers	The president will chair and form the Council of Ministers from all the parties represented in the parliament on proportional and inclusive basis	The president will appoint the majority leader from the parliament and ask him to form the Council of Minister	The president will appoint the majority leader from the parliament and ask him to form the Council of Minister²	The president will form and chair the Council of Ministers, which will also include the president, vice-president, and other ministers (TMLP
Electoral system	Multi-member directly election proportional system	Mixed member proportional electoral system	Mixed member proportional electoral system	Mixed electoral system (TMLP)
Minimum voting age	16	18	18	18
Retroactive laws	There should be no provision where such laws can be enacted.	Provision for retroactive laws and punishment for crimes against humanity, war crimes, ethnic cleansing	Provision for retroactive laws and punishment for crimes against humanity, war crimes, ethnic cleansing
Land ceiling	A ceiling on landholdings	Except for scientific land reform purposes, state cannot enact laws restricting property ownership	A ceiling on landholdings	State cannot enact laws that restrict personal income or property (MJF-N, TMLP, Sadbhawana Party)	State can nationalise important means of production and services, and limit personal property (Nepal Majdur Kisan Party)
Compensation	When appropriating lands above the ceiling, compensation will be provided.	When appropriating land above the ceiling, state has to provide compensation.	When appropriating land above the ceiling, state has to provide compensation.
Ceiling on property	There should be limitation.	There should be no limitation.	There should be no limitation.
Alternative to the federal democratic republican system mentioned in the fundamental rights and directive principles	People’s federal republic	Federal democratic republic based on pluralism and multiparty competitive elections	Federal democratic republic based on pluralism and multiparty competitive elections	Federal democratic republic based on multiparty competitive elections with pluralism	Socialist republic (Nepal Majdur Kisan Party)
Autonomy and right to self-determination of the indigenous and Janajati people	Self-governance and autonomy with right to self-determination of the indigenous population and Janajati people		Indigenous and local people have rights to recognition, natural resources, self-governance; and rights to self-determination under the prevailing constitution and laws while affirming national integrity, interest and unity
Madhes autonomous state	Autonomy with the right to self-determination to the Madhesi community	Equal apportioning of economic, social, and cultural opportunities and benefits to the Madhesi communities; and special opportunities and benefits to the distressed and backward communities within the Madhesi communities for their preservation, progress, empowerment, and development	Equal apportioning of economic, social, and cultural opportunities and benefits to the Madhesi communities; and special opportunities and benefits to the distressed and backward communities within the Madhesi communities for their preservation, progress, empowerment, and development	Autonomous Madhes state with right to self-determination of the Madhesi community and prior rights over the land and natural resources (MJF-N, TMLP, Sadbhawana Party)
Priorities on social security/welfare	Rights to the families of martyrs of all past people movements and Madhes movement, disappeared, disabled, injured for participation in all organs of the state, special privilege in government and public service, education health, employment, housing, social security, compensation and pension		For the families of the martyrs who sacrificed their lives for democracy in various movements, democracy fighters, conflict-affected, displaced, disabled, injured, justice from the state, proper honour and priority in education, health, employment, housing and social security
Prior rights	Indigenous and local communities will have prior rights over land and natural resources.	There should be no provision of prior rights.	There should be no provision of prior rights.	Madhesi communities will have the right to self-determination and prior rights over land and natural resources to assure an autonomous Madhes state. (MJF-N, TMLP, Sadbhawana Party)
Definition of right to self-determination
Keeping “people’s war” in the preamble to the constitution	Should be kept.	Should not be kept.	Should not be kept.	Should not be kept.
Inclusion	In the preamble to the constitution, people’s competitive multi-party democratic proportional inclusive form of government should be mentioned.	Words to the effect “based on pluralism” be added.	In the preamble, “based on pluralism” should replace “people’s proportional inclusive”
Constitution amendment	There should be no provision prohibiting amending of the constitution.	Amendments to the constitution cannot be made that go against republican system, rule of law, independent judiciary, fundamental rights, press freedom, pluralism, multi-party competition, federalism, adult franchise, and periodic elections.
Representation	To amend the constitution to delineate the borders and rights of a federal unit “The majority of the federal units’ legislatures shall accept or reject the Bill presented for their approval within three months thereof through a majority vote of the total number of existing members, and send an information thereof to the federal legislature			Replace “majority of the federal units’ legislatures” with “federal units’ legislatures that represent more than 50% of the population” (TMLP)
Appointment of ambassadors and special representatives	On the principle of proportional inclusion	Based on the principle of inclusion	Based on the principle of inclusion	On the principle of proportional inclusion (MJF-N, MJF-D, MJF-R, TMLP, TMLP-N, Sadbhawana Party)
*State restructuring*	Due to limited time, forming a commission will not be good.	Only after formation of a commission	Proceeding on parties consensus	Commission should not be formed at all. Can take suggestions from a group of experts. (MJF-N, MJF-D, MJF-R, TMLP, TMLP-N, Sadbhawana Party)

¹In the discussion with parties, it has been advocating directly elected prime minister and constitutional president, which was also mentioned in its constituent assembly election. However, during voting on the form of government in the Committee, it supported the NC proposal of “executive prime minister elected from the parliament with constitutional president”, NC had supported UML in the electoral system voting.

²During discussions, it has proposed the president asking the directly elected prime minister to form the Council of Ministers, which he will also chair.