The President of Nepal: Constitutional Role and Responsibilities

By DR BIPIN ADHIKARI

Paper discussed at a forum jointly organized by the Consortium of Constitutional Experts (CONCOE) and Tribhuvan University Faculty of Law, Kathmandu, August 25, 2008

The President of Nepal is the head of the state. He replaces the King who has been dethroned by the Constituent Assembly elected to draft a new constitution for Nepal. Like the King, he has been given enormous powers by the Interim Constitution. He has powers in the judicial, legislative, executive, and financial fields. He has also military powers, diplomatic powers and powers of emergency. But his capacity as the head of the executive branch of government is largely a legal fiction.

The Nature of Presidency

In other words, the President exercises most of his powers upon the recommendation and advice of the Council of Ministers (submitted through the Prime Minister) accountable to the parliament, or other constitutional entities like the Constitutional Council, which has the responsibility for major political appointments for the constitutional functionaries created under the Constitution. In a typical Westminster tradition, the powers of the head of the state under the Interim Constitution implies that he can do no wrong; he is incapable of authorizing wrong to be done, because where he acts with the cooperation of others, those who cooperate with him are responsible for his acts. Clearly, the position of the head of the state is not intended to be a controversial position. The argument here is not that the function to be exercised by the President on the advice of the Prime Minister is just formal or mechanical. The head of the state can provide all his comments on any proposed course of action and ask the Prime Minister, if necessary, to reconcile the matter. The Constitution does not reject the power of the President to provide creative assistance to the government in his bid to safeguard the Constitution and help its enforcement. It is only in the last resort that the President should accept the final advice of the Prime Minister. In the ultimate sense, the Prime Minister has the right to have his way no matter what the President thinks about it.

Some contradictions

While making it obvious, that this is a system based in the doctrine of ministerial responsibility, the Interim Constitution does not state the obvious that "the executive power of the state, pursuant to this Constitution and other laws, be vested in the President and the Council of Ministers." After sharing most of these executive powers with the President, including the power of declaring emergency, the Interim Constitution states that "the executive power of Nepal shall, pursuant to this Constitution and other laws, be vested in the Council of Ministers" - ignoring altogether the role of the President in the exercise of key constitutional powers. Similarly, the Interim Constitution does not acknowledge that just as the activities of the head of the state and internal business of parliament are to be immune from challenge in the court, so the business of government, as it takes place between the Council of Ministers and the president must not be the subject of scrutiny. Similarly, the present Constitution has also dropped the earlier parliamentary rule that the head of the state can send back a bill to the parliament asking it to reconsider the instrument on certain grounds. The new arrangement now is that the President only has to certify the bill as passed by the legislature; he cannot have any opinion on it. But these loopholes cannot belittle the fact that the President heads the state in a parliamentary form of government; and is expected to facilitate the business of the executive as a 'constitutional' as opposed to 'ceremonial' president.

Constitutional Role

In this background, the status of the presidency in the future depends on how President Dr Ram Baran Yadav, who is the first elected head of the state, and bears principal responsibility to uphold the Constitution, implements the parliamentary spirit in it. The recent move of the President asking the Constituent Assembly (acting as the legislature) to elect a new prime minister for the country according to the electoral process specified in Article 38 (2) of the Interim Constitution is an important issue in this context. Following the failure of the political parties to forge a consensus government, which Article 38(1) of the Interim Constitution required as the first intended move, President Yadav had advised the assembly to go for this second option.
The move of the president certainly surprised many critiques, who have different understanding of how a parliamentary system of government works, or should work in an ideal case. In fact, the Interim Constitution spared no clear guidelines on the role of the President about the formation of the government. Even the five piecemeal amendments on this document -- just over a period of seventeen months -- left no clue to the President how he should exercise his discretion on the electoral positions of different parties in the newly elected Constituent Assembly, and find a prime minister for the country from within the House.
As a matter of parliamentary tradition, it is the responsibility of the President to find and appoint a prime minister for the country from the Constituent Assembly. He cannot delegate this responsibility to any A, B or C cutting unnecessary procedural corners. In a parliamentary system, this is probably the only executive act, which the President is supposed to do himself, on his own discretion and best judgment, and without any persuasion from the existing government. The Interim Constitution does not deny this power of the President either by express words, or by necessary implications.
For the great faith reposed on him, it is the newly appointed prime minister who in turn is expected to prove his new credential before the House by securing a vote of confidence within a specified time. Apparently, by not doing so, the President not only ignored the applicable constitutional conventions, but also abdicated his constitutional powers to those people who were not entitled to this.
In other words, if the President authentically believed that the Communist party of Nepal (Maoist) had the fresh electoral mandate -- at least more than the rest of the minor parties in the House, Maoist chairman Puspa Kamal Dahal should have been quickly appointed as the prime minister (recognizing that he is a cut above others in this regard). It would have been logical for the President, in such a situation, to ask Dahal either to form a consensus government, or failing it, go for a government with simple majority -- in each case giving primacy to his first right to form the government.
Article 55A of the Constitution, which provides for the vote of confidence, would have served as an important institution to oust the new prime minister, had he failed to muster necessary support. Apparently, the Maoists were not allowed to negotiate with the minor parties based on their newfound status in the House.
No doubt, both the President and the Maoist leaders were misguided about the applicable constitutional process. The President was advised to ask the CPN (Maoist) chairman -- the leader of the largest party in the Constituent Assembly -- to form a consensus within seven days to provide a new government to the people.
Later, this one week bizarre timeframe was extended to another three days. The CPN (Maoist) chairman was then advised to go around seeking support of the other minor parties -- without first asking the President to appoint him as the Prime Minister before he really started embarking on this process.
There was almost no difference of opinion among the major parties at that point that the CPN (Maoist) should be allowed to lead the new government by virtue of its status as the largest party in the Assembly. That was enough for the Maoist Chairman to make a claim, and the President to appoint him as the Prime Minister. Otherwise, how a party, which lacked simple majority in the House, could go on forming a consensus without getting an opportunity to deal with the rest of the minor parties from the position of power.
Unfortunately, the Maoists, too, instead of going for matured legal advice, were persuaded to question the power of the President to consult lawyers and leaders of the parliamentary parties, and appoint the most feasible person as the next prime minister, at his personal discretion.
Ordinarily, in a parliamentary system which follows the Westminster practices, it is the power of the President to summon the leader of the majority party to form the government as soon as the results of the elections to the House of Representatives are declared. If a particular party is in majority in the new House, the President has no discretion in the matter. However, if no political party has clear majority in the House, the President can exercise his discretion in such a situation. In other words, it is his responsibility to invite that member of the House to form the government, who seems to be able to do it with a reasonable prospect of maintaining a government in office.
It is for the President to think how he can identify that person who might command a majority in the House of all these minority parties that we see in the Constituent Assembly. The President should of course take all relevant considerations into account and be at great pains not only to be constitutionally correct, but make every effort to see that the correctness is likely to be generally recognized. It is not binding for the President to consult the outgoing prime minister, or the Attorney General under his functional control. In any sense, he must appoint the man or woman who can form a government which will have the confidence of the House within a specified period.
A general election might produce a result allowing of either a single-party minority government or a government formed from any of various combinations of parties under one or other of a number of party leaders. Hung assemblies, with no party enjoying an overall majority, will doubtless continue to recur if the system of proportional representation that has been adopted becomes the rule in the future as well.
This only means that the President has to recognize the first among the minor parties. The leader of the largest party could only be avoided as prime minister if it were clearly demonstrated to the President that a 'copper-bottomed coalition government' had been reached between other parties, and that their chosen leader was assured of majority support in the House. When there is no such situation, the President need not be constrained in appointing the leader of the largest party in the Assembly as the prime minister of the country. Unfortunately, it did not happen the way it should have happened.

Continuity of national traditions

It is not clear why the Interim Constitution did not have a word about many things that the monarchy was associated with as the symbol of Nepalese 'nationality' and 'unity' of the Nepalese people।

This symbiotic expression of 'nationality' and 'unity' in the institution of monarchy had the historic connotation in the context of nation building as well as pointing up the need for unity from a diversity of language, culture, religion and geography. It seems the people of Nepal have given a very positive nod to the President in his attempts to give continuity to many religious, cultural and social traditions of Nepal as the head of the state. His visit to watch the 'bhoto' of Rato Macchindranath and to worship Krishna Mandir as per the tradition maintained by the monarchy were much appreciated by the locals. But at the same time it is not clear how the secular republican ethos of the Interim Constitution fit well with these deeply traditional basis of common bondage.

(The writer is a constitutional expert)

Controversies at Constituent Assembly

By DR BIPIN ADHIKARI
http://www.kantipuronline.com/kolnews.php?&nid=160183
The Kathmandu Post, September 11, 2008
Disagreements over two major issues are said to be obstructing the passage of the draft Constituent Assembly Rules of Procedure. The first relates with the appropriate size of the proposed Constitution Drafting Committee and the second with the issues that might be subjected to conscience vote during the constitution making process.
Both these issues are significant concerns today. The experts of the Constituent Assembly Secretariat, who helped devise the draft Rules of Procedure, provided that the size of the Constitution Drafting Committee shall be limited to only fifteen members in order to make sure that this small and competent group fulfils its responsibility efficiently in a small core group in the house.
Similarly, they also provided that the Chairman of the Constituent Assembly may allow conscience votes to the members during the constitution making process when he finds in consultation with the members of the House Steering Committee that the issues before them involve very contentious moral dilemma. In such a situation, political parties were supposed to keep off from taking positions or issuing whips on these issues, and members were allowed to cast their vote according to their individual conscience.
The message that has come out of the row is loud and clear. All twenty-five parties in the Constituent Assembly, irrespective of their strength in the House, want to be represented in the Constitution Drafting Committee in view of its final and crucial role in the constitution drafting business. In other words, they hate the idea of building coalitions within the House to get represented in the 15-member Constitution Drafting Committee. Even a party which has only one member in the House wants to see its member doing the job of the constitutional draftsman sitting along with the representatives of the other major parties.
Apparently, what they are demanding comes out of the accommodative jurisprudence of 'consensus,' which has been overemphasized over the last two years, but which, if accepted at this juncture, has the potential of weakening the electoral mandate of the major parties in the government and the opposition. But what is more important is the fact that it is highly inconceivable that a large Committee which gives individual representation to each small party in the unicameral House, and then allows additional members on the proportional strength of each major party can write any meaningful Constitution. This will make the job of writing the Constitution messy and fatalistic.
The second thorny issue involves the vote of conscience. It is learnt that some minor party representatives, especially the Madhesi and Janjati groups, want to mould the draft provision as to the vote of conscience in a way that allows them more political maneuverings against the party whips of the major national parties -- Maoists, Nepali Congress and CPN (UML). These representatives want conscience vote to be offered to all Madhesis and Janjatis in the issues that involve them. That virtually means releasing the Madhesis and Janjatis of the major parties from the control of their party high command. Obviously, the party system may face a major challenge from within.
In a parliamentary system like ours, the elected members of a House who belong to a political party are usually required to toe the party line on significant political issues for fear of censure or expulsion from the party. Whether it is the United Kingdom, New Zealand or Australia, parties exercise this control over the votes of individual members of the House as a rule. This becomes necessary to make sure that the party manifesto on the basis of which they have won the elections is implemented honestly.
Conscience votes are given on exceptional basis on non-political issues. They are usually quite rare. Very often they are about an issue which is very contentious, or a matter on which the members of any single party differ in their opinions, thus making it difficult for parties to formulate official policies. Usually, a conscience vote will be about religious, moral or ethical issues rather than about administrative, political or financial ones. Once conscience votes are allowed, parties do not exercise control over the votes of individual legislators. They can vote as their conscience dictates and even oppose their party position without consequence. These events are rare and are never on matters of confidence.
Issues such as the death penalty, the prohibition of alcohol, homosexual law, same sex marriage, and the legality of prostitution are often subject to conscience votes. Rules concerning protection of pregnancy or abortion have usually been subjected to a free vote. In such cases, a party declines to dictate an official party line to follow, and members may vote as they please. But there is more to it than that.
As an example, early this year, British Prime Minister Gordon Brown bowed to pressure from pro-life groups and Catholic Church leaders to allow a conscience vote on a bill that would allow human cloning. The British Parliament will vote on the Human Fertilisation and Embryology Bill sometime next month that allows the cloning of human-animal hybrids. The Bill is now in the committee stage at the House of Commons. The conscience votes will apply to three clauses, governing human admixed embryos, saviour siblings, and the need for a father during fertility treatment. If passed, the Bill would allow scientists to create human-animal hybrid embryos for 14 days. Anything other than a conscience vote on this issue would have been a travesty. It is a rare sort of issue that must always lay outside the simple notion of party political belief in broad principles.
At least in theory, this country is reconsidering so many issues about its constitutional laws and practices. To some Constituent Assembly members, many matters central to the political system and the major constitutional policies might look like issues of conscience (or abstention). One side might say something is a conscience issue for him to oppose. Another side might declare that for them, it is not conscience matter at all. As far as the concept is concerned, one cannot imagine a conscience vote on sending troops to war, or the nature of the federal system that Nepal needs, or the type of secularism that might satisfy the urge of the Nepali people.
Is anybody serious? If a political party is not to have a line on such political matters, what do political parties exist for at all?
[lawyers_inc_nepal@yahoo.com]
Posted on: 2008-09-10 21:14:44 (Server Time)

Implications of a hung Constituent Assembly

Implications of a hung CA

By DR BIPIN ADHIKARI
http://www.kantipuronline.com/kolnews.php?&nid=146272
The Kathmandu Post, May 8, 2008

The Interim Constitution of Nepal 2007, which pledged a Constituent Assembly (CA) to the people, has done so without enumerating its constituent powers whatsoever.
All that this constitution provides for is a guarantee of the basic rights of the Nepali people to participate in a free and impartial election to the CA and frame a constitution for themselves through this organ. The Interim Constitution does not guarantee that the sovereign house will have no limitations in its constituent powers or that it will not be constrained by the decisions of the interim legislature or the interim government on the basis of this constitution or by any executive agreement that it has signed with rebellious groups in the pre-election period.

As such, the guarantee of the basic rights of the Nepali people to frame a new constitution does not imply the unencumbered sovereign capacity of the CA to draft a new constitution of its choice without any limitations on its powers.

The assembly is intended to operate within two concrete a priori formulations. Article 159 declares that (a) Nepal shall be a federal state and (b) a country with a democratic republican setup. The first formulation concerns sharing of sovereign powers between political units, which do not exist till now in the Nepali consciousness, and the second concerns dispensing with the monarchy, which allegedly lost its credibility in the fight against the Maoists.

As to these preconditions, while the nature of the federal state is something still to be worked on, Article 159 requires that the transition to a republic be made at the first meeting of the CA. To give effect to this formulation, the parties in the alliance even dropped the clause requiring a simple parliamentary majority by the third amendment to the Constitution.

It is just by chance that the operation of this provision is tied to Article 75 which ensures that all questions submitted for a decision to the CA, except as otherwise provided in Part 7 of the constitution, must be decided by a majority vote of the members present and voting. Accordingly, the alleged first meeting must also pass a motion to this effect by a working majority in the House in order to abolish the monarchy.

Similarly, the constitutional declaration that Nepal shall be a federal state comes ahead of its due date. Ordinarily, it is the elected delegates of the CA, who have the responsibility of deciding what form of government is best for Nepal, who should make the decision. With this clause inserted into the constitution, the debate has now been carefully shifted to the issue of autonomy, which had not been the demand of the natives of this country so far.

This shows the enormity of the contradictions that the CA finds itself in. A genuine CA by definition can only be convoked under conditions of full democratic liberties of the delegates, permitting the participation of all the parties concerned, and without any external or internal limitations on its constitution making powers.

A CA is not a legislature that is supposed to be governed under express or implied limitations on its constituent powers. It is a self-sufficient source of power from which all specifics of a state are to be derived. As a corollary, it should be able to exert paramount control over the constitution while making the frame of the government and its administration. While the Interim Constitution might have given birth to the CA in the normal course of political development, the assembly can chart out its future ways without any guidance from the parent document and forge ahead with its own terms and conditions. Otherwise, there is no difference between a normal legislature and a CA intending to give a fresh start.

However, the faulty Interim Constitution has outsmarted its architects in two very surprising ways. First, as far as the general rule of the constitution is concerned, the members of the CA must vote on each and every article of the draft constitution in order to pass it; and failing unanimous passage of the motion, at least two-thirds of the total members of the CA must give it a unanimous exit to turn it into the new constitution.

So, even if the first meeting of the assembly, for example, were to abolish the monarchy and establish a republican state by a simple majority, the move cannot in anyway pre-empt the power of the CA members to reintroduce a new motion restoring the monarchy in due time and pass it by a two-thirds majority. There is nothing in the constitution which can restrain this motion; and as long as there are people in the House to table such a motion and to support it by a required strength, the monarch is here to stay. This means that, contrary to popular belief, the king's fate will remain undecided until the new constitution is promulgated. Same with the declaration of a federal state.

Secondly, the faulty system of proportional representation that the architects of the Interim Constitution introduced with little knowledge of the ensuing structure has already generated a mixed political lot in the assembly. As no party has an outright majority, what we have is a hung CA, and there are many parties in the House which do not share the political platform of the Seven-Party Alliance (which had monopolized the process of drafting the Interim Constitution). The House is compelled to work with these uneasy political partners.

As the constitution does not provide for the dissolution of the assembly on any ground, except when the objective has been accomplished, a hung assembly is bound to work out either a coalition government or a minority government with the support of these backbenchers. The requirement of a two-thirds majority in the constitution making process will force the ruling elite to redefine issues like federalism and monarchy in the overall context of the state's restructuring. The smaller parties in power will make a lot of difference when major constitutional policies are sorted out in the House.

There are some who have already started an exercise (in futility) to help produce a national government eliminating the prospect of any opposition in the constitution making process. The Seven-Party Alliance is almost an exercise of this type, which has already served its purpose. But it is inconceivable that it can continue any longer in the new scenario. In any case, such a national government has a very poor reputation historically. Whether it is the national government of GP Koirala (2006-08) or of British Prime Ministers Ramsay MacDonald, Stanley Baldwin and Neville Chamberlain (which held office from 1931 until 1940), all have been a liability to the nation. Fortunately, a loyal opposition is going to be prominent in Nepal for the next two years. This opposition is going to make sure that the nation is in safe hands.

Additionally, a coalition government led by a party which has lost its credibility before the majority of the people can be equally destructive to the cause of the nation. Nepal is surely familiar with the hung parliament after 1995. It is perhaps not out of place to mention that even in the 1974 general election in the UK, sitting Prime Minister Edward Heath had refused to resign at first, attempting to build a coalition government despite winning fewer seats than the then opposition Labour Party. So if Prime Minister Koirala is still trying to hang on to his post, it should come as no surprise. But the House itself is going to take offence against such ambitions.

The structural limits on the power of the CA and unauthorized normative or inspirational impositions are going to grow fainter due to the operation of the hung CA. This is good for the country.

lawyers_inc_nepal@yahoo.com
Posted on: 2008-05-07 20:01:25 (Server Time)

संघीय शासनको सान्दर्भिकता

डा विपिन अधिकारी
http://www.kantipuronline.com/kolnepalinews.php?nid=141810
The Kantipur Daily, March 25, 2008 (Chait 12, 2064)

क्यानाडाको क्विन्स विश्वविद्यालयका प्राध्यापक रोनाल्ड वाट्सको 'एकात्मक राज्यप्रणाली विखण्डनकारी हुन्छ' शर्ीष्ाकमा दि काठमाडौं पोष्टमा छापिएको एउटा अन्तर्वार्ताले धेरैको ध्यानाकर्षा गरेको छ । संघीयताका विद्वान र अनुभवी वाट्सको दाबी के छ भने जात, धर्म, जातीयताका आधारमा नभए पनि जनसंख्या, भूगोल, आर्थिक विकासजस्ता विविध आधारमा नेपाललाई संघीय संरचनामा बदल्न सकिन्छ । उनको भनाइमा विखण्डन रोक्न संघीयता जरुरी छ । यसो त विखण्डनका आन्दोलन संघीय राज्यमा पनि भएका छन् । यसै आधारमा मात्र मुलुकको संविधान एकात्मक हुने वा संघीय हुने विवेचना गरिनु हु“दैन । यसबाहेक पनि वाट्सका अन्य भनाइ नेपालका लागि कति सान्दर्भिक छन्, यकिन गर्न जरुरी छ ।

संघीयता आफैंमा नराम्रो प्रचलन होइन । विश्वका करिब दर्ुइ दर्जनबाहेक सबै मुलुकमा एकात्मक राज्यप्रणाली छ । कतिपय मुलुक पर्ूण्ा प्रजातान्त्रिक छन् र आर्थिक विकासका दृष्टिले प्रगतिशील पनि मानिन्छन् । संघीयता अपनाउने मुलुकमध्ये पनि मलेसिया तथा भारतजस्ता आधाभन्दा बढी मुलुकको शक्ति विभाजन केन्द्रीयताको पक्षमै देखिन्छ । औंलामा गन्न सकिने देशले मात्र राज्य र संघलाई समान हैसियतमा स्वीकार गरेका छन् । तथाकथित आत्मनिर्ण्र्ााो अधिकार ग्यारेन्टी गर्ने मुलुक
दर्ुलभ छन् ।

प्रचार-प्रसार गरिएजति एकात्मक शासन लोकप्रिय शासन प्रणाली होइन भन्ने दाबी शंंकास्पद मान्नर्ुपर्छ । स्पेन तथा बेल्जियमजस्ता देशले आफूलाई निश्चित राजनीतिक यथार्थका आधारमा संघीयतामा परिणत गरेको सत्य हो । परिवर्तित अवस्थामा पनि उनीहरूम्ााझ एकात्मक विशेषता नभएका होइनन् । कपडाको जुत्ता लगाउने कि छालाको भन्ने प्रश्नको निरूपण कुनै पनि देशको धरातलीय यथार्थका आधारमा गरिनर्ुपर्छ । त्यस आधारमा नेपालले संघीयतामा हामफाली हाल्नुपर्ने कुनै विशेष आकर्षा छैन ।

संघीय शासन पद्धति किन भन्ने उचित जवाफ भेटिएको छैन । नेकपा -माओवादी) को राजनीतिक कार्यक्रमको रूपमा सुरुदेखि स्थापित यो विषय हाल मधेसमुखी दलले ज्ाोडतोडले उठाएका छन् । उनीहरूका एजेन्डा बढी आक्रामक तथा सनातनी संघीयताको व्यवस्था - जस्तो संयुक्त राज्य अमेरिका वा क्यानाडा) तर्फउन्मुख प्रस्टै छ । यसका दर्ुइ कारण छन्, पहिलो, संघीयताको आधार भनेको राजनीतिक इकाइका रूपमा राज्यहरूको स्वतन्त्र अस्तित्व तथा आत्मनिर्ण्र्ााो अधिकार प्रयोग गर्न सकिने स्थिति हो । दोस्रो, विगतमा स्पष्ट आधार नभेटिए पनि ऐतिहासिक राजनीतिक इकाइको रूपमा आफूलाई स्थापित गराउने चाहना हो । अन्य दल मूलभूत रूपमा पछाडि परेका जाति तथा समुदायको सशक्तिकरणको उद्देश्यबाट निर्देशित देखिन्छन् । संघीयतै किन भन्नेमा उनीहरू दिग्भ्रमित छन् । मधेसमुखी दलहरूले संघीयतालाई सामरिक दृष्टिकोणले हेरिदि“दा उनीहरूका अप्ठेरा झन् दर्ुइ गुना बढेका छन् । कुनै पार्टर्ीीनि एकात्मक राज्य पद्धति विरोधी देखि“दैनन् । अहिलेको बाह्य प्रभाव र निर्देशित राजनीतिक वातावरणमा धान्नैपर्ने राजनीतिक कार्यक्रमका रूपमा संघीयता स्वीकार गर्न बाध्य देखिन्छछन् ।

एकात्मक राज्यकै रूपमा रहनु नेपालको राष्ट्रिय स्वार्थ अनुकूल छ । एकात्मकता राष्ट्रिय एकताको प्रतीक हो । एकात्मक राज्यमा दक्ष एवं कुशल शासन तथा नीति निर्धारण तथा राज्य सञ्चालन कार्य सजिलो हुन्छ । राष्ट्रप्रतिको निष्ठा तथा भक्तिलाई अंशबन्डा गर्नुपर्ने स्थिति हु“दैन । राज्य इकाइ र संघबीच शक्ति विभाजन दुर्बोध्य काम हो । मुलुकलाई विभिन्न राज्य इकाइबीच संर्घष्ाको घानमा हाल्नुु हु“दैन । संविधान तथा कानुनमा संशोधन पनि एकात्मक व्यवस्थामै सजिलो हुन्छ । अप्ठेरा परिस्थिति तथा विशेष अवसर तथा चुनौती सामना गर्ने क्षमता पनि एकात्मक सरकारमा बढी हुन्छ । र्

खर्चको हिसाबले अहिलेको परिपाटी संघीय परिपाटीभन्दा फाइदाजनक हुन्छ । शान्ति सुरक्षाजस्ता विषय र त्यसभन्दा पनि संकटकालीन स्थितिमा अहिलेको प्रणाली र्सवाधिक उपयुक्त हुन्छ । नेपाल आर्थिक विकासका सम्भावना तथा भूमण्डलीकरणको परिपे्रक्ष्यमा साहसी निर्ण्र्ाालिने क्षमतावान तथा फर्ुर्तिलो हुन आवश्यक छ । आज अमेरिका तथा क्यानाडा जस्ता देशले नया“ संविधान बनाउने हो भने यस्तो संविधान बनाउनेछन्, जसले शक्तिशाली केन्द्रीय सरकार सुनिश्चित गर्न सकोस् । त्यस्तो सरकारले मात्र राष्ट्रको सुरक्षा तथा प्रतिरक्षा गर्न सक्छ ।

नेपालमा नेपाली जातिको इच्छा र आकांक्षा परिवर्तनको बाहक हुनपाएको छैन । शदीऔंदेखि एकात्मक राज्यका रूपमा रहेको नेपाल तथा सामाजिक-आर्थिक तथा भावनात्मक रूपमा पनि अखण्ड राष्ट्रको स्वाभिमान स्थापित भइसकेको मुलुकको राजनीतिक धरातल बलपर्ूवक परिवर्तन गरी सिमान्तीकृत गर्नुपर्ने कारण बुझ्न सकिएको छैन । संघीयताको नाममा देशलाई दस चिरा पारेर यसबाट अक्षम राजनीतिज्ञ तथा संंकर्ीण्ा पक्षपोषकका लागि अवसर सिर्जना भने गर्न सकिन्छ ।

जतिसुकै ढिपी गरे पनि ऊबेलाको अमेरिकामाजस्तो नेपालीम्ाा राज्य वा समुदायहरूको संघीय राज्य बनाउने सांगठनिक क्षमता तथा त्यसलाई निर्देशन दिने जेर्फसन वा जेम्स मेडिसनजस्ता क्षमतावान नेता प्ानि छैनन् । हाम्रो राजनीतिक नेतृत्वको क्षमता, स्तर वा विवेक निकट भविष्यमै चमत्कारिक ढंगले बढ्ने सम्भावना पनि छैन । विभाजित राज्यप्रणाली समन्वय गरी एकताको सूत्रमा बा“ध्नसक्ने सांगठनिक क्षमता तथा नेतृत्व विकास हुन समय लाग्नेछ ।

प्रजातन्त्र विकासको औजार पनि हो । नेपालमा स्थानीय स्वशासनलाई धेरै वर्षेखि यसै अर्थमा हेरि“दैछ । कतिपय क्षेत्रमा राम्रा तथा उल्लेखनीय काम भएका छन् भने कतिपयमा सुधारका टड्कारा सम्भावना देखिएका छन् । एकात्मक स्वरूपभित्र राज्यको पुनःसंरचना हुनसक्ने तथा पीडित वा उपेक्षित जाति तथा समुदायको अधिकारको ग्यारेन्टी तथा स्थानीय स्वशासन गर्न सकिने स्थिति सधैं छ । उनीहरूले खोजेको समानता तथा सहभागिता कार्यान्वयन गर्न देशको शक्ति तथा सम्भावना निर्वाध प्रयोग गर्न सकिने स्थिति छ । यति हु“दाहु“दै पनि यो मुलुकलाई सम्झौताबाट स्थापित राज्यका रूपमा पुनःलेखन गर्न किन पर्‍यो, आर्श्चर्य लाग्छ । दलित, जनजाति वा मधेसीलाई सशक्तिकरण गर्ने उद्देश्य हो भने केन्द्रीय शासनको मूलधारमा उनीहरूलाई सिधै स्थापित किन गरि“दैन -

नेपाललाई एकात्मक राज्यको अवधारणामै विकास निर्माण गरिनर्ुपर्छ भन्नु अहिलेको राजनीतिक वा प्रशासनिक स्वरूपलाई निरन्तरता दिनर्ुपर्छ भन्ने होइन । सही कार्यका लागि कर्ुतर्कले जित्न आवश्यक छैन । क्षेत्रीय विकासका आवश्यकता तथा राष्ट्रिय एकतालाई स“गस“गै लान सकिन्छ । स्थानीय स्वशासन बलियो बनाई संघीयताका आधार निरन्तर प्रयासबाट बिस्तारै आर्जन गर्न सकिन्छ । स्थानीय स्तरमा र्सार्वजनिक कार्यहरूप्रति उदासीनता हटाउन सकिन्छ । हरेक धर्म, जातजाति, संस्कृति तथा क्षेत्रलाई समान सुविधा तथा पीडित तथा उपेक्षित समुदायलाई अतिरिक्त संरक्षण गर्न देशको अंशबन्डा जरुरी छैन । नत केन्द्र र इकाइ सरकारलाई परस्पर स्वतन्त्र तथा समकक्ष बनाउन जरुरी छ । प्रजातान्त्रिक संगठन र कानुनी राज्यको परम्परा कमजोर हु“दै गएको मुलुकमा संवैधानिक क्लिष्टता वा सत्ता बा“डफा“डले देशको पुनःनिर्माणमा जटिलतामात्र थप्न सक्छ । मुलुकको विकेन्द्रीकरण कार्यक्रम अर्न्तर्गत वर्षोनि सरकारबाट विनियोजित पा“च-सात लाख खर्च गर्ने क्षमता नभइसकेको गाउ“घरलाई संघीयता कति सजिलो होला अनुमान गर्न सकिन्छ ।

प्रा वाट्सका विचार धेरै प्राज्ञिक छन् । उनले नेपालको भू-राजनीतिक स्थितिलाई उक्त अन्तर्वार्ता तथा उनले जीटीजेट तथा युएनडीपीद्वारा आयोजित कार्यशालामा प्रस्तुत गरेको कार्यपत्रमा विवेचना गर्न भ्याएनन् । छिमेक असल हु“दो हो त नेपालले हालको दुरवस्था खप्नुपर्ने थिएन । मुलुक भित्रको आतंकवाद वा औपनिवेशिक चलखेल कसले धान्न सक्छ सधैं - यो पक्ष उचित मूल्याङ्कन गर्दा संघीयताबारे धेरै दाबी यसै खुकुलो भएर जानेछन् । यस स्थितिमा संघीयता केवल बोकाको मुखमा कुभिन्डो चरितार्थ नहोला र -

Posted on: 2008-03-24 22:05:13

Inexplicable Results

http://www.nepalnews.com.np/contents/2008/englishweekly/spotlight/apr/apr18/coverstory.php

Spotlight, VOL. 27, NO. 31, April 18, 2008 (Baishakh 06 2065 B.S.)

Wining majority from out of 240 seats allotted for first-past -post system, the CPN-Maoist, which is yet to receive global recognition as a mainstream party, has turned Nepal, a back water of world's largest democratic country, into a red field. Although the counting of votes for another 335 seats allotted for the proportional representative system is yet to complete, it is almost certain that CPN-Maoist is going to emerge as the single largest party in the Constituent Assembly Elections 2008. The result is inexplicable but CPN-Maoist, a party which fought a decade long violent insurgency – got the mandate in an election which international observers described as free and fair. In a country where a minority government of CPN-UML collapsed in nine months, how long another government led by a radical Maoist will be watched with great interest

By KESHAB POUDEL

"The results of the present election were unexpected. We had not imagined that our party will win such a large number of seats," said CPN-Maoist leader Dr. Baburam Bhattarai to The Kathmandu Post.

"This result surprised us as our candidates have suffered badly," said CPN-UML leader Madhav Kumar Nepal, who resigned just a few days back following the election results.

"How the Maoists won the election in so many places is surprising," said Nepali Congress leader Sher Bahadur Deuba, after his victory in two constituencies in far western districts.

Prime minister Girija Prasad Koirala, who was congratulated by international observers including former American president Jimmy Carter, too, is shocked by the results. "I didn't imagine that our party will be rooted out in such a manner. Just wait for few more days before deciding to quit the government," prime minister Koirala told his colleagues who had gone to meet him at his residence in Baluwatar on Monday.

Not only the top leaders, common people in the streets, too, are very surprised to see the outcome. This is the reason there is no jubilation and happiness despite the wave of victory in favor of the Maoists and there is no spontaneous support and jubilant mass of the people. The only persons participating in the election rallies are the party cadres.

Constitutional Provisions

With the elections to the Constituent Assembly accomplished, the focus of political debate in Nepal has at once shifted from the electoral issues to the issues involving formation of a new government according to the fresh mandate.

“But in the absence of a clear direction under the Constitution, which suffers from many deliberate lacunas and caveats, a very constitutional process is about to be handled in a very controversial way. It is giving the impression that even after housing 601 assemblymen, freshly elected and nominated, the culture of ad hocism does not intend to disappear,” said Dr Bipin Adhikari, lawyer and constitutional analyst.

According to Article 38(1) of the Interim Constitution, the Prime Minister is to be appointed on the basis of political consensus. “There is no provision in the Constitution as to who should initiate the process; how it should be done; and whether there are standards of conduct to get it done. Political consensus is the rule even if there is a majority party in the House. Although the Council of Ministers is to be formed under the Prime Minister's chairmanship, the Council itself is to be the product of political consensus. In this jurisprudence of consensus, the difference between those who have more popular support, and those who have barely survived, is not constitutionally recognized. So, essentially, a majority Prime Minister has no majoritarian power, even if that means disregard to the voters, and the fresh mandate the voters have conferred on the Prime Minister,” said Dr Adhikari.

The Constitution clearly states that if consensus cannot be reached as above, the Prime Minister shall be elected by a majority of two-thirds of the members of the Constituent Assembly. Even if this provision is rationalised as a stimulant towards consensual process of constitution making, it does not stand out as an acceptable rule of law.

According to Dr. Adhikari, a unicameral house of 601 person is a very loud arrangement. It is impracticable also because the interim Constitution has not provided any mini-legislature within the Constituent Assembly to work on legislative and policy issues so that these jobs are done professionally, and through a deliberative process. It is too much for all 601 assembly men to work in the Constituent Assembly as legislators, and in a meaningful way.

The present result of first-past-post system is just one of the forms decided to elect the members for Constituent Assembly as there is just 240 seats allotted under this system. According to article 63 of the Interim Constitution, the constituent assembly consists of 601 members. Under the proportional representation system there will be 335 members, 240 under the first-past-post system and 26 are nominated on the recommendation of the cabinet.

For the purpose of this constitution "political consensus" means the political consensus reached between the seven political parties- Nepali Congress, Communist Party of Nepal (UML), Janmoracha Nepal, Nepal Sadbhavana Party (Anandadevi), Nepal Majdur Kishan Party, Samyukta Janmorcha and Communist Party of Nepal (Maoist).
After 1995 when CPN-UML formed a government as a single largest party, this is first time in the history of Nepal when communist party with radical ideology has won such a large seats in the election held under the observation of more than one thousand observers led by former US president Jimmy Carter and United Nations Mission to Nepal.

Despite monitoring by international observers, the election was full of violence and threats. From daughter of prime minister Koirala, Sujata Koirala to many other NC leaders who lost the elections lost due to intimidation and threat.

Even many goons came from across the border to terrorize the voters of Sujata Koirala in her constituency 3 of Sunsari. One of Sujata's workers died in cross firing in the bordering polling booth.

"Don't ask me about election. I cried for help from all sides. I did not receive any support. EC was one sided and administration was not concerned about mass rigging," said Koirala.

Though Nepali voters are hailed as a peaceful and conscious voters, Nepalese have tendencies to back one extreme to another without knowing its fall out. When King dissolved the elected parliament in 2002, people welcomed it by lighting the lamps. In similar way, people welcomed the move of February 1,2006 action of the King. They welcomed the interim government led by Koirala and all its actions without any resentment. In the election, they voted radical communist outfit to power without knowing its implications on their life like in CPN-UML in 1992 elections.

Reasons Behind Election Debacle

Several reasons work for the debacle of two parties. One of the main reasons of debacle of Nepali Congress and CPN-UML is their long negative list. Those who had negative views against those two parties voted Maoists as a next choice.
The second important reason was that voters decided to give a chance to fresh players. At a time when there is no plus point in favor of CPN-UML and Nepali Congress –which followed the Maoist line - people saw the Maoists as better alternative.

Nepali Congress has lost a big monarchist vote bank and people disliked CPN-UML because of its feeble stands on political issues. CPN-UML leader Madhav Kumar Nepal- who was also a member of constitution drafting committee in 1990, proved to be inconsistent.

Along with others, CPN-UML also gave up its stand on nationalism. CPN-UML was completely silent over the citizenship Act, water resources treaty and other such sentimental issues. Except anti-monarchy posturing, nothing was left to Nepali Congress and CPN-UML to compete with Maoists. However, the Maoists established itself as an anti-monarchical force long before them. At the last minute, Maoist even issued statement urging Royalist to vote for them.

People have seen Nepali Congress and CPN-UML's role in the government turn by turn. However, among three players, Maoists were untested. This also prompted voters to vote for Maoists.

Other major reason for Maoist victory is deep rooted fear psychology. Rural people decided not to take the risk of voting other parties. When there was a wide spread rumor in the rural areas about Maoist threat and intimidation, no one could dare to risk their life by not voting the Maoists.

Even in his last leg of political campaign, CPN-Maoist leader Prachanda urged his cadres to behave as Gandhiji for seven days. That means they would continue to use drastic methods after the election.

"One of the main reasons behind our devastation is our failure to convince the rural voters that they will be safe after the election for CA," said senior CPN-UML leader Pradeep Nepal.

In an indication of how the Maoists would behave in coming days, on Monday (April 14) Maoists attacked finance minister Dr. Ram Sharan Mahat and his convoy when he was on his way home after winning election in Nuwakot

Because of guarantee of security in urban areas and presence of huge international observers, the population in urban areas did not feel any threat. However, the situation in rural Nepal was very difficult. By winning from a constituency in Rautahat district, a wanted man Babban Singh showed how threat works in rural areas.
The role of unseen power was the most significant to notice. "Maoists have been used for first phase of destabilization in Nepal from 1996-2007 by this unseen power. Now, Maoists can be used for second phase of operation in Nepal to have upper hand in Nepal security," said a political analyst.

International Response

International response to the Maoist victory is positive now. India which has backed Maoists and seven party alliance since November 2006 permitting them to ink the 12 point agreement in New Delhi has already expressed satisfaction. From Indian point of view, this is a great success as they have covertly backed parties and Maoist up to the present point.

Indian ambassador to Nepal Shiv Shanker Mukherjee has already met Maoist leader Prachanda and congratulated him for the success of his party in the election. " India has taken the Maoist victory in constituent assembly elections in Nepal as a positive development," said Indian foreign minister Pranab Mukherjee. "We support the Maoist victory in the April 10 Constituent Assembly election in Nepal and view it as a positive development. The Maoists have successfully taken part in the democratic process. It will now be easier to India to work with the democratically elected government of Nepal."

The United States - which still tags Maoists in its terrorist watch list – has mumbled few words of congratulations for conducting election. For Europeans, they were in constant touch with the Maoist leadership.

Nepal's other neighbor China also expressed satisfaction over the way the constituent assembly election was held.
Lessons For Nepali Congress

Nepali Congress legendary leader B.P. Koirala often said that Nepali Congress has no utility if it gives up the policy of national reconciliation. "If we give up national reconciliation, which is based on nationalism and democracy, our role will diminish. We must understand that we will lose our identity in case we give up national reconciliation," said Koirala in his book King, Nationalism and Politics (Raja, Rastriyata and Rajniti).

"National unity cannot be achieved in vacuum. Which means that the people factor and the monarchy must combine, that there must be total understanding between these two elements of national life. The alternative to this is ruin. That is what I feel and, therefore, I do not contemplate any alternative to this," said B.P. Koirala in his interview to Bhola Chatterji, an Indian journalist in 1979.

However, joining hands with extremists and following their ideology, Nepali Congress has badly suffered in the election. Although he is regarded as a hero by international community, prime minister Girija Prasad Koirala is completely a loser at his end of political carrier. He pushed Nepali Congress from largest party with majority to nowhere.

Challenges For Newly Elected body


The greatest challenge for the elected representatives of the people is to realize their responsibility as trustee of the people – the sovereign. “In no way, this elected body would be under a bondage to follow the diktat of the dubious power centers of the party or elsewhere. Though it was an avoidable game of populism, the CA is a reality. It will have to take up every issue in the constitution making in accordance with the fresh mandate of the people. It is under no compulsion to endorse the ruling or decisions of the previous nominated house of legislators," said the analyst. “The greatest challenge to Nepal at present is a question of survival as a truly independent, democratic and prosperous nation.”

"We will bring peace, stability and prosperity to the people. We will work to protect our independence and sovereignty," said Maoist leader Pushpa Kamal Dahal Prachanda in his victory rally.

While taking about these consensus issues, national unity is the first and foremost task ahead. "It requires a caliber in the leadership, a long term vision and accommodative attitude. People of Nepal have always been supportive of the political ideals of broadest unity between different sections of the people. B.P. Koirala is all the time remembered by different ideological groups of Nepal mainly because of his politics of reconciliation based upon a long term vision," said the political analyst.

Issue of Monarchy

Although article 159(2) of the interim constitution declares that the implementation of transition to republic shall be made at the first meeting of the Constituent Assembly, the parties are yet to make new decision on it. The newly elected body has to discuss over the utility of institution of monarchy in its first session. Since time immemorial, it has been the most significant continuity from the past. The newly elected body has to balance the pros and cons of its utility and legislate about its fate.

"This legislative body is not going to be a rubber stamp of any past decision. As it represents the sovereignty of the people with its fresh mandate, it cannot remain under duress from the seen and unseen centers of powers or irrational decisions of the past," said the analyst. "As it is going to consider things in a long term perspective, it has to evaluate the role of traditional institution maintaining traditional faith of the people as a stabling factor."

The election results showed that it was neither about the king against the people or upper cast Vs lower cast or Madhes Vs Pahad. Many members who actively took part in King's direct rule have won the election and some of them are contesting the election through proportional representation. Former regional administrator under King's direct rule Mrigendra Kumar Singh Yadav and former assistant minister under his direct rule Govinda Chaudhari won the election as candidates of Terai Madhesh Loktantrick Party and Bijaya Kumar Gachhedar - who was reportedly soft about King's direct rule - also secured victory from two constituencies in the election as a candidate of MJF.

Many people of hilly origin won seats from Madhesh contesting as candidates of major parties Nepali Congress, CPN-UML and CPN-Maoist. They won seats in all 22 districts of plain, which Madhesi parties wanted as a separate federal state. In some districts like Bardiya, Kailali, Kanchapur, Jhapa, andUdayapur, these parties swept the polls.

Similarly, many republicans including CPN-UML general secretary Madhav Kumar Nepal, Home minister Krishna Prasad Sitaula and Dr. Shekhar Koirala, Mahesh Acharya also lost the elections. Republican leader Narahari Acharya won the election but at the cost of Nepali Congress which was virtually uprooted in many places.

The Pandora's Box of Constituent Assembly is now reality for Nepal and the country needs a sobriety in the decision making process on the part of the legislators as well as the political parties.

Unlocking some constitutional issues

By DR BIPIN ADHIKARI

The Kathmandu Post April 24, 2008
http://www.kantipuronline.com/kolnews.php?&nid=144860

With the election to the Constituent Assembly accomplished, the focus of political debate in Nepal has at once shifted from the electoral issues to the issues involving formation of a new government according to the fresh mandate. But in the absence of a clear direction under the Constitution, which suffers from many lacunas and caveats, a very constitutional process is about to be handled in an incredibly controversial way.

According to the Interim Constitution, the Constituent Assembly is intended to serve two purposes: first, it has to draft and adopt a new constitution based on popular mandate of the voting adults in the country.

Secondly, it has to bring into being an accountable government to run the country until fresh election under the new Constitution produces a new executive. So, the existing legislature and the executive arm of the government are not to co-exist with the Constituent Assembly designed by the Interim Constitution. As a consequence, the responsibility of the Constituent Assembly is not only regarding the exercise of the constituent power of the people, but also about creating provisions to run the country for the remaining part of the interim period.

This is not always a chosen practise. As an example, in Bolivia which is about to complete the constitution making process, the election to the Constituent Assembly and the timetable for it was announced by Evo Morales, an indigenous leader, who took over as president in January 2006 under the existing Constitution. While both the government and a regular legislature took the normal business of the state, the Constituent Assembly concentrated in the constitution making without being subjected to any real or intangible restraints from any quarter. Its recommendations would need to be approved by a two-thirds majority of the Assembly and then be submitted to a national referendum for its final approval. At least in principle, this arrangement is aimed at making sure that the rule of law prevails, and there is little excuse for any eventuality.

The model of constituent assembly that has been enshrined into the Interim Constitution of Nepal is different. First, it has created a Constituent Assembly which comes with certain prescriptions like federal structure of the state, the abolition of monarchy, and so on, that pre-empts the power of the Constituent Assembly in a very unacceptable way. Secondly, the unicameral house is supposed to be a legislature, as well as the organ creating the interim governing body.
Thirdly, and partly related with the second feature, is the faulty jurisprudence of ‘consensual’ government’ that has been institutionalised by the Interim Constitution to eliminate opposition at a time when the country needs it more than ever before. Consensus is important in constitution making, but a loyal opposition to the executive power is a crucial requirement, when the country is bringing far-reaching changes in the country.

Article 38(1) of the Interim Constitution ordains that the prime minister is to be appointed on the basis of political consensus. There is no provision in it as to who should initiate the process; how it should be done; and whether there are constitutional rules to be complied with. There is simply nobody who has the authority to judge the competing claims of different parties to lead a new government. Political consensus in the formation of government is the rule even if there is a visibly majority party in the House; or there is a possibility of a strong coalition government. The status of a largest party is not recognized by the Constitution. It goes without saying that in terms of the Constitution, the recent eagerness of the CPN (Maoist) to lead or form a new government has no constitutional basis. This novelty in the constitutional thought is hardly understandable.

Additionally, if consensus cannot be reached as above, the prime minister is to be elected by a majority of two-thirds of the members of the Constituent Assembly. Again, although the Council of Ministers is to be formed under the prime minister’s chairmanship, the Council itself is to be the product of political consensus. This means that even if a consensual prime minister is found, his authority to create a cabinet of his choice is not recognized.

In this jurisprudence of consensus, the difference between those who have more popular support, and those who have barely survived, is not constitutionally accepted. So, essentially, a majority prime minister has no majoritarian power, even if that means a clear disregard to the voters, and the fresh mandate they have conferred on the prime minister. This stringent standard penalises a party or a coalition group which commands a majority in the House for its proved electoral strength (instead of recognizing its worth).

This precarious provision of the Interim Constitution comes with another off the wall formulation. For the purpose of this constitution, ‘political consensus’ means the political consensus reached between the seven political parties — Nepali Congress, CPN (UML), Janamorcha Nepal, Nepal Sadbhawana Party (Anandidevi), Nepal Workers and Peasants Party, United Left Front, and CPN (Maoist). Technically, the Constitution does not require the vote of those parties which did not join the 8 November 2006 consensus, or those who have entered the Constituent Assembly either as a new party, or as an independent candidate.

Oddly enough, the Interim Constitution no where states that the incumbent prime minister must give way to the prime minister elected by the Constituent Assembly. In fact, the Constituent Assembly cannot sit by itself if the prime minister does not call it. He must call it first and then resign voluntarily giving way to the new prime minister. In other words, if Prime Minister GP Koirala decides not to resign at his sweet will, there is no other constitutional way out to force him out except through a no-confidence motion. But for that to happen he must be benevolent to call the house. Even if the House is called, the no-confidence motion requires a two-thirds back up, which does not seem to be possible at this stage.

As this Constitution lays down, the Constituent Assembly at its first meeting (as summoned by the prime minister within 21 days after the final results of the election of members have been made public by the Election Commission) is supposed to implement Nepal’s transition to republic. Here too, such a first meeting cannot rightfully move such a resolution without getting the 26 unelected members of the Assembly on board under Article 63(3).

For this to happen, a government with a fresh mandate must be formed first, and it must be allowed sufficient time to find qualified nominees for the purpose of appointment, unless the parties use the power of the outgoing prime minister to give effect to this provision.

Additionally, the formation of the government itself will be questionable without the voting rights of these 26 members first recognized. Even if the ‘consensus’ formula works to find out a way out, irrespective of the legal validity of the move, the Constitution does not allow the space for the appointment of a president to replace the king as the head of the state. It is possible only after the fourth amendment of the Constitution. The Constitution is clear in the prescription that the prime minister will act as the head of the state until the monarchy is not voted out; but it is not clear as to who will fill up the vacuum once they are successful to do it.

Moreover, a unicameral house of 601 people is a very shrill arrangement. An intelligent strategist, who believes in consensual process of decision making, would never create such loud-mouthed machinery. It is impracticable also because the interim Constitution has not provided any mini-legislature within the Constituent Assembly to work on legislative and policy issues so that these jobs are done professionally within such a unit keeping the time of the house free for constitution-making business. It is too much for all 601 assembly men to work in the Constituent Assembly as both the framers of the constitution and as legislators, and in a meaningful way.

Things do not become legal simply because there is consensus. Unfortunately, at that level of simplicity, it just does not work. It is giving the impression that even after housing 601 assemblymen, freshly elected and nominated, the culture of ad hocism is not likely to disappear in Nepal. Once again the possibility of compromising the higher principles of law and constitutionalism in forming the new government has become imminent.

[lawyers_inc_nepal@yahoo.com]
Posted on: 2008-04-23 19:34:24 (Server Time)