“The Efforts Of CA Are Encouraging”


April 8, 2011, 5:45 p.m. Published in Magazine Issue: Vol. : 04 No.-20 April 08-2011 (Chaitra 25,2067)

KRISHNA MAN PRADHAN, executive director of Nepal Law Society, has been working in the legal field for a long time. He has been actively involved in the constitution writing process over the last four years. As barely two months of the extended deadline remains for the Constituent Assembly to promulgate the constitution, Pradhan spoke to New Spotlight on various issues related to constitution drafting. Excerpts:

What is your view about the state of constitution making?
The tenure of the Constituent Assembly is coming to an end on May 28, 2011. In the last 10 months, 7 meetings of CA were held. The first phase work has been completed. All thematic reports have been submitted to the CA. But still there is no clear basis for preparation of the first draft. The CA members and political parties are trying hard to meet the deadline.

Are you happy with the situation?
The promptness shown by the Constituent Assembly (CA) for making constitution has to be appreciated. For the last four years, Nepal Law Society (NLS) and International IDEA have been collaborating with the Constituent Assembly Secretariat in supporting the constitution making process. Despite hard work, however, there are still some disputes on several constitutional issues that have hindered the smooth progress in constitution making.

How hopeful are you about accomplishment of the task?
Several steps have been taken to solve these issues and draft the new constitution. A high level political committee was constituted last year and now a subcommittee under the chairmanship of UCPN-Maoist leader Pushpa Kamal Dahal 'Prachanda has been working to settle the outstanding issues. Constituted in February 25, this five member dispute resolution sub committee solved a number of core issues. This has helped the Constitutional Committee to draft the constitution.

Are there still disputed issues?
During the last 10 months, 180 disputes were settled but there are still around 108 issues that have to be resolved before the first draft of the constitution can be prepared by the Constitutional Committee. On the basis of experiences, what I can say is that it is impossible to write the complete version of the new constitution within deadline. But I would like to request personally to the CA members that they promulgate a brief version of the new constitution within the deadline. They can do the remaining work by extending their tenure for six more months with a new calendar of operation. If CA members can convince Nepalese citizens that they are sincere, people will support them. But if the political parties extend the tenure without publishing the first draft and calendar of operation, it may invite chaos and trouble.

Will there be new constitution soon then?
The efforts made by CA members to write the new constitution are encouraging. They have now, at least, the basis for writing the constitution. But actually writing the new constitution fully depends on the environment of trust and consensus among the political parties. Although there are several issues that are creating hurdles in promulgating the initial draft, they can be settled through political consensus.

Where are the main disputes?
Except in the committee to determine the Basis of Cultural and Social Solidarity, the reports of all other committees have disputes in them. The most disputed issue is the form of governance: whether to go for the president as the head of state or whether to elect the prime minister from the parliament. There are still 4 disputes in the report about form of governance. Similarly, there are 11 disputes in the report of Fundamental Rights and Directive Principles Committee, 33 disputes in the report of the Committee on Determining Legislative Organs, 8 disputes in the report of Judiciary Committee, 2 disputes in the report of the Committee on Protection of National Interest and 21 disputes in the Report on Constitutional Committee. To resolve these issues, the CC held 11 meetings between January 31 and February 16 and resolved some of them.

What is Nepal Law Society doing with regard to constitution making?
With the support from International IDEA, Nepal Law Society has published a draft of the constitution with the involvement of 30 prominent constitutional experts of Nepal. Our report suggested that the president should be elected on the basis of adult franchise and the duty and function of the president should be explained in the annexes of the constitution so as to limit his role. Our suggestion is that the prime minister has to be elected by the majority of the MPs on parliamentary forms. Since the new constitution is going to be a consensus document, this system will help them.

How about the disputes on judiciary?
Debates have been going on as to how the judiciary can be made free from external disturbances, how can we make it function smoothly or without any political intervention. The sub-committee has so far resolved the disputes. The active initiative taken by the judiciary to maintain the rule of law is really appreciable in the present context. In order to retain an independent judiciary, the judiciary should be separated from legislature. Our draft has proposed that there should be the constitutional court which is led by the Chief Justice with four members, who are the experts on the constitution making and other judicial works. The constitution must make provisions for the nomination and appointment procedures so that the right person gets the membership. Among others, jurisdiction of the Constitutional Court and the Supreme Court has to be clearly marked so that the two don't overlap.

What about state restructuring?
State restructuring is another very sensitive issue. The State Restructuring Committee has proposed fourteen federal states. In our experience, even the committee has started realizing that fourteen states are not practical and this has to be decreased. So, if these states are decreased to five then we can make practical working structures, give full authority to states and this can be implemented as well. There is also a big question on the local government bodies. There is a big gap between the local bodies and the federal state. In order to bridge the two, another provision can also be made. For example, merging around 4,000 VDCs to almost 1000 municipalities and also increasing 58 municipalities to 200 can solve the problem. We can also extend the number of wards to 30 from 9, in view of the size, population and geography.

What are new programs of the Society?
Nepal Law Society is now running constitution information centers in 8 different zones of the country and we conduct weekly discussion programs to disseminate the updated information on constitution making to the general public. We are planning to extend it to cover fourteen zones of the country.

What do these centers do?
All the people of Nepal will have access to information on the work done so far in constitution making, the gist of the major discussions and so on will be available to the people through the mobile teams. These teams include lawyers, experts and volunteers. We have also provided information through libraries and the local FMs. Due to time and resource constraints, though, we are still struggling to provide up-to-date information on time.

How have you been helping the CA?
We are helping the CA in two ways. First, we have been providing technical support in constitution making. Second, our support goes to create awareness about the constitution making to the general public. There is a perception that the CA members are just wasting their time and money among the commoners. In order to create awareness among the public, International IDEA, UNDP, USAID, and NLS are working together to show what is happening.

How useful have these centers become?
We have the capability to mobilise more than 10,000 people around the country when the CA sends the draft of the constitution to the people for study. These centers support Civil Relations Committee and Public Opinion Collection and Coordination Committee during the period of opinion collection. The role of Nepal Law Society is just that of a facilitator.

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