"Solution Should Be Found Within CA"

KRISHNA MAN PRADHAN, Executive Director of Nepal Law Society, has had a long experience of working in the constitution making process.

Sept. 26, 2014, 5:45 p.m. Published in Magazine Issue: Vol: 08 No. -8 September. 26- 2014 (Ashoj 10, 2071)

KRISHNA MAN PRADHAN, Executive Director of Nepal Law Society, has had a long experience of working in the constitution making process. As Nepal’s second Constituent Assembly has shown signs of uncertainty over its timeline to promulgate the constitution, Pradhan spoke to New Spotlight on various issues. Excerpts:

How do you look at the possibility of promulgating the new constitution by January 2015?

Looking at the recent activities of the political parties, the common people have already started to question whether the new constitution will be promulgated by January 22, 2015. As the present Calendar of Operation has already been affected for two weeks and the Dashain and Tihar festivals will further disrupt the Constituent Assembly work for another two or three weeks, it will not be easy to produce the draft within one and a half months. The efforts of political parties should now be to bring the first draft by January 22, 2015. If they promulgate the new constitution by June 2015, the people will still welcome it.

Do you still believe that they will promulgate the new constitution?

People have lost the hope that the new constitution will be promulgated even by January 2015 given the present behavior of political leaders. The opinion of 250,000 people, collected through 14 Constitution Information Centers, reveal that people are losing the hope. However, they have not lost courage.

How do you view the function of the Constituent Assembly?

The CA has been drafting the constitution through five subject committees.  The submission of the report by the Committee for Study of Constitution Records and Determination to the CA gave a good indication. However, the report prepared by the committee is not as per the expectations of the people. The committee has sent the draft with disagreements seeking extension of tenure to find the consensus among the parties within CA and outside. Based on the reports of the 11 thematic committees of previous CA and decisions taken by High Level Political Committee and Dispute Resolution Subcommittee, till June 2012 and suggestions of the present CA, the draft report draws the lines for new constitution.

How about the role of other committees?

The Committee for Study for Constitution Records and Determination has only sent those issues on which members reached a consensus to the Constitution Drafting Committee. Those issues which did not find consensus were sent to Political Dialogue and Consensus Committee.  There is much on which political parties have reached consensus. On that basis, the drafting committee has already made certain progress.

What difficulty is there to draft the new constitution?

The Constitution Draft Committee is facing many dilemmas. One of the dilemmas is: what to accept and what to reject. For instance, some of the consensus agenda, including the citizenship issue, can be addressed by the law. However, the committee cannot reject them because there is consensus among parties to put them in constitution. There is also the question of jurisdiction of the drafting committee. Is the jurisdiction just to incorporate the agenda as sent by Study for Constitution Records and Determination Committee or can it make corrections on them? 

How do you find the report prepared by Dr. Baburam Bhattarai?

So far as the report tabled by the chairman of the Constitutional Dialogue and Political Committee Dr. Baburam Bhattarai is concerned, it is a very positive step. The first CA dissolved without giving constitution. Had the high level political committee tabled the consensus agreement to then CA, the situation would have been different. Even the present CA would not have to go for the lengthy process. Although the report is not complete and it is just a compilation, the committee has fulfilled part of its duty.  It has tabled its report on time. So far as what CA needs to do is to return the document to the committee with certain stricture.

How can the parties settle so many thorny issues on constitution?

Country’s major political parties had already reached an agreement on the form of government, judiciary, state restructuring, and number of states and so on, a few days before the dissolution of first CA.  That understanding could not be continued for long. If the parties can reach such understanding again, they can settle the thorny issues.

How do you see the role of other committees?

So far as Committee for Capacity Development and Resource Management is concerned, it is yet to be effective due to lack of resources, function and coordination. The role of Civic Relations and Constitution Suggestion Committee, which is supposed to work out plans for pre-discussion on the draft of the constitution, is yet to play its role. Although the committee has already prepared the working plan, it does not have adequate budget to carry out its activities in the districts. It has already formulated the program to take the first draft of the constitution at ward, village and district levels to seek the public opinion. The committee received lesser budget from the government than it demanded. We are ready to jointly work with the committee. 

What is the role of drafting committee now?

Drafting committee also remains idle as the committee has already incorporated proposals sent by the Committee for Study of Constitution Records and Determination. In relation to some issues like the number of provinces and forms of government, judiciary and electoral system, the drafting committee has incorporated all the issues in the draft.  There was consensus on all issues among major parties. Even CA’s annual report published it and Nepal Law Society published the model constitution accommodating all the consensus agenda. Ninety percent of the content are already there in the model constitution published by Nepal Law Society and there is the need to take a decision on a few articles.

Do you think parties will make broader consensus?

Despite the boycott of roundtable meeting by CPN-Maoist, efforts are underway to find consensus among all the political parties, including those outside the CA, in the new constitution. This is a very good step. However, it should not be used as a tool to delay the promulgation of the new constitution.  We had very bitter experiences in the past with leaders of five political parties making 601 members of CA hostage. This committee took almost two years without bearing any fruit.  People are asking whether the few top leaders can make CA hostage again.

How do you see the demand of a political party to form a high level committee?

In the name of high level political committees, some political parties seem to be making similar mistakes as in the past to make the elected CA hostage. Of course, there is a need to have a committee to deal with the opinion of various political parties. My advice is that the solution should be found within the CA and the high level committee should be formed within CA.

If you cannot form the high level political committee, how can you accommodate the views of parties outside CA?

There is the need to have separate procedures to accommodate the opinions of political parties outside the CA. The role for organizing programs should be given to Dr. Bhattrai-led committee. The Constituent Assembly Rules, 2014 has given clear mandate to the committee and empowered it to bring the forces outside and inside the Constituent Assembly on board.

Do you think parties can settle their disputes on state restructuring and form of government?

As I mentioned, political parties had already reached understanding on the form of government, judiciary and other issues in the past. They had also reached agreement on contentious issue like number of provinces. There is almost a consensus on forming less than 10 provinces. Some parties are proposing 11. There is disagreement over the name and numbers of provinces but there is agreement on the rights of the provinces. There is no dispute over the rights of provinces. If there is agreement on the number of provinces, the provincial legislature should be given to decide its name. Parties have already agreed on mixed system with elected president and prime minister elected by parliament.  Some parties are now talking about reformed parliament. There is a need to build consensus on these matters. If political parties stick on party lines over the form of government and number of provinces, the country will not see a new constitution even in another two decades.

How important is it to hold the local elections at present?

An overwhelming majority of people want to hold the elections of local bodies. We held several workshops in various parts of Nepal; and people have emphatically said that they want to see the polls held. People in villages complained that the country has already seen two elections at central level, however, there was no local election at all. People questioned the democratic credential of various political parties as they failed to hold the elections at local level. People are demanding the local election be held as early as in coming November.

Some parties argue that holding the elections at the present juncture will stand against the spirit of federalism. How do you look at it?

I don’t know where those political parties got that idea from. Grassroots level democracy is an integral part of federalism. There should be provisions to make the local bodies as per the new constitution.  As there are no elections at the local level, all the politicians aspire for the CA. If we held the local elections, 270,000 representatives will be mobilized at the local level. The posts include mayor, deputy mayor, DDC chair and VDC chair.  Only local elections can improve the governance at local level and it will also build the pressure to the CA. The government should hold the local body elections.

Do you see any lacuna in the recently tabled amendment bill on local elections act?

The government has tabled amendment bill at the Legislature Parliament with a provision of two women ward chair. But it must have provision for 33 percent of the participation of women at all level. There were 33 percent of women (197) in the first CA and now there are 171 with 31 percent.  There is the need to have mandatory provision for 33 percent women. Vice chairperson, vice president and vice mayor should be reserved for women. From executive ward to assembly, there is the need of 33 percent reservation for women.

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