People's Weekly: Friday, 30 May 2008 By M.R. Josse
Penning this before yesterday’s scheduled opening of the Constituent Assembly (CA) when the ‘declaration of a republic’ was to be a done deed, the thought that arose in this commentator’s mind was whether in so doing we as a nation have not acted in reckless haste only to deeply repent at leisure later.
In fact, quite apart from the tearing haste that was exhibited in many political quarters on this score, myriad issues including those of external pressures, political probity and constitutional lacunae were linked to it.
EXTERNAL PRESSURE
Most galling, at least to people who consider themselves patriots, is that certain external forces – too well known to need any specific or special mention here – provided much of the driving force to attempt to do away by fiat the institution of the Monarchy in its most recent 240 year-old manifestation.
Irrespective of all other considerations, that pungent home truth should have caused all conscious citizens to ponder why such powers or foreign interests were so determined to uproot the very institution that was instrumental, along with the Army, in putting Nepal, as we know it today, on the map of the world.
What was it about the institution that stuck in their delicate gullets? Were they in fact against the very concept of Nepal as an independent, sovereign state? Was Nepal under the Monarchy too independent or nationalistic in her foreign policy projection? Was she a hurdle in the advancement of unspoken global geo-political goals and geo-strategic maneuvers using Nepalese territory as a convenient base? Or, was it merely that a Hindu Monarchy was considered completely unacceptable or anathema to them?
One doesn’t have to be a Kissinger or Muni to realise that there are umpteen Monarchies and Muslim Sheikhdoms, including those in Asia, that are still being robustly supported by the new ‘democratic’ messiahs rampaging across the globe in an evangelical fervour. The question is: why should only the Nepali Monarchy have been thus targeted?
At the very least, such disturbing questions ought to have caused a pause and stirred a thorough debate and discussion in the CA before the Rubicon was so recklessly crossed.
Yet, the unseemly haste is manifest in the domestic sphere as well. Thus the interim constitution that pledged a CA to the Nepalese people has, as noted constitutional lawyers have pertinently pointed out, been executed without even specifying its constituent powers.
As Bipin Adhikari argued and rued in a recent article in the Kathmandu Post: “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.”
DUE PROCESS
Besides, the hurried or slapdash nature of the whole business has been poignantly reflected in that the Assembly did not provide the aggrieved party, or the King, the opportunity to contest the motion against him in the House where he should have been allowed to present his case before the die was cast.
As Adhikari bemoaned in an opinion piece also in the Kathmandu Post: “In (a) democracy it (providing such an opportunity) matters; and it matters in the most powerful sense. The King is not being toppled; he is being laid off. If this is the truth, then the process requires that he must be allowed an adequate opportunity to present his case.”
Quite aside from the miasma of subterfuge that wafted from the grotesque Alice in Wonderland-like ‘sentence first – verdict afterwards’ approach, there is the incontrovertible fact that in the end the seven super political parties that called the shots decided this cardinally important question for the entire population.
What, pray, is the meaning of ‘loktantra’ if the right of the ‘lok’ to pronounce on the key constitutional issue was so brazenly hijacked by a political cabal acting in the name of the people. If so, what we now have is not ‘loktantra’ but ‘partytantra’ – with the real decisions being made virtually by one party!
Furthermore, do universally accepted notions of political probity and norms of fair play and parliamentary ethics have absolutely no place in the new ‘loktantric’ order of ‘naya Nepal’? Else, why should the provision have been made to decide that fundamentally important issue by a simple majority – when every other decision on which there is no consensus needs a two-thirds majority?
Was the Monarchy vs. Republic issue a trivial one? Or, was the intention right from the start to bulldoze through regardless, comforted in the knowledge that, at least for now, there is no likelihood of effective opposition either from inside the Assembly or from without? Was all this merely, or mainly, to please unseen powers that be?
The less said about the double or even treble standards of the fabled ‘international community’ the better. As already noted, most members of that charmed circle had vested interests or hefty axes to grind in seeing that the institution of the Nepali Monarchy goes the way of the dodo.
LESSONS FROM HISTORY
If not the others, they surely should know from contemporary history that contentious issues that are not properly settled through legitimate legal means or due process and resolved instead through application of steamroller tactics, have an appalling tendency to return, sometimes with even greater ferocity, to right what is deemed as a historical wrong.
That argument can perhaps be better understood if one recalls that peace agreements such as the Versailles Treaty of 1919, based on the principle that ‘might is right’ and driven by a spirit of diktat or revenge, led to the rise of Hitler with terrible consequences for the whole world.
Super Powers, or wannabee Super Powers, must in particular be reminded of the above realities of international relations, as also that a drastic change in Nepal’s strategic or geo-political status, or tilt in one particular direction – likely to follow the abolition of the Monarchy – must sooner rather than later, set in motion countervailing forces, including external ones.
In our case, it is not difficult to foresee a looming confrontation between opposing forces, including in what is shaping to be the battle for a ‘Free Tibet’ from Nepali soil. In short: instead of sustainable peace, stability and prosperity in the country, we could now jolly well be heading in the opposite direction. When the centre collapses, it is difficult to imagine the periphery holding!
IGNORING UNIVERSAL VALUES
But, to return to the arguments proffered earlier, this commentator can only endorse Adhikari’s concluding remarks: “Eventually, those who are said to be making history should make it on the strength of self-respect and certain universal values.
“Such values – justice, equality, the rule of law, to mention the most basic – need to be protected, no matter who gains from it. It might delay the process a little, but it can surely give a clear outlet to the problem and a firm footing to the democrats.”
Another illuminating perspective was offered by Trilochan Gautam, a well-known advocate, in a recent interview to this weekly. Among other things, he argued powerfully that a constitution may only be implemented after it is formulated.
He then rightly questions: “How can only one provision of the constitution be implemented. Declaring the country a republic is only one provision of the interim constitution. The new constitution can only be implemented after it is prepared fully and ratified by the constituent assembly. It cannot be implemented in part or in pieces. The issue of declaring (a) republic by the first meeting of the constituent assembly will be illegal. If they do it, it will be coercion and imposition.”
One doesn’t have to be a legal-eagle to point out that the assumption that the diktat of the interim constitution on the issue of the Monarchy has to be scrupulously obeyed by the CA seriously undermines the concept that the elected CA is a sovereign body, that is to say, the sole master of its own rules and procedures.
Even a political science neophyte who is still wet behind his/ears can easily figure out that an Assembly specifically elected to draft a new constitution cannot, in all legitimacy, be dictated to by a defunct interim assembly composed of unelected representatives of a seven-party oligarchy.
That apart, it is a gaucherie of the highest order that, two days before the CA was convoked, proposals were been forwarded by the Maoists at a three party meeting to ‘amend’ the preamble as well as Articles 1, 4, 38, 45, 46, 138, 158 and 159 as also to scrap Article 159 (5) which gives recognition to the King.
If there is so much homework that needed to be done from just the Maoists’ perspective where was the cyclonic hurry?
As the well-known adage goes: act in haste, repent at leisure!
Monday, September 15, 2008
Friday, September 12, 2008
Problems facing Constitutent Assembly
http://www.kantipuronline.com/kolnews.php?&nid=160296
By DR KHAGENDRA N SHARMA
It has been four months since the Constituent Assembly (CA) was formally announced. But not a single word of the constitution has been written yet. It is true that the country was declared a republic in the first session of the CA, but it was just a formalization of a decision already made by the Interim Legislative-Parliament. So, the CA cannot claim the credit for the termination of the monarchy. The CA has created the posts of president and vice-president of the republic, but it is still an interim arrangement and the powers and functions of these posts will have to be redefined in the context of the new constitution. Thus, the whole function of writing a new constitution remains unattended.
There are two different types of problems facing the CA and both of them are of a serious nature. The first problem consists of the processual aspects of the constitution making -- the how part of it. It is reported that some rules have been finalized regarding the processual aspects like forming different committees through which the ideas will filter culminating in the provisions of the constitution. Much time will be needed to pass through all the committees. Apart from that, ample field work will have to be done to ascertain and analyze the views of the people at the grassroots. These ideas will have to be articulated thoroughly in the CA and placed in the hands of skilful constitutional experts to convert into appropriate provisions of the constitution.
The CA has been too large and unwieldy a body to articulate issues effectively and make decisions collectively. This aside, the CA has also to function as the Legislative-Parliament. It is a pity that the legislative part will consume a significant portion of the two years time in which the constitution has to be completed. So, the CA will have only a small part of the allotted time.
Given the fractured coalition, there will be numerous differences of thoughts among the parties, both within and without the coalition partners. The incongruous make-up of the fractured coalition will be naturally reflected in the CA. The decisions are expected to be unanimous in an ideal situation, but it is very unlikely in the present situation, given the protracted bargaining in the whole political process. So, decisions are expected to be made, if at all, simply by the required two-thirds majority.
The second problem is substantive, subject-matter questions pertaining to the various aspects of the body of the proposed constitution. These problems are so serious that it is inconceivable that the constitution can be made in the limited given time. The most problematic and difficult issues are those regarding the restructuring of the state. It has been promised that Nepal will be a federal state. Sentimentally, it is a fine promise, but there is no uniform concept of the federation. Before and during the CA election, all the parties talked of the federal structure for future Nepal, but no party except the CPN (Maoist) had even a vague concept of the proposed federation. The Maoists had proposed a distinct federal structure, but it has raised more questions than probable answers and it will be difficult to sell the concept to all the parties for the following reasons.
The Maoists had raised a general awakening among the masses for the concept of the federation during the decade-long conflict, but the concept was understood, articulated and popularized by different communities very differently during the interim period leading to the CA election.
In most of the cases, there has been ethnic orientation, but language had also played a big part in sensitizing the people. If these two criteria are accepted as the basis of federalizing the state, then there will be more than a hundred units to be federated. That will be simply unimaginable. Then there is the bigger criterion of space or geographical divisions. But geography does not go by homogenous ethnicity, linguistics or cultural factors.
The tarai movement has strongly voiced the concept of one Madhes. It has raised several potentially dangerous issues. If the topography of the country is to be taken as the criterion of breaking the state, there will be three major types -- the flat plains, the high mountains and the moderate hills in the middle. Taking cue from the Madhes call, the communities in the high mountains have already started to make claims for a mountainous state all along the north. The mid-hills have not yet raised such a demand but given the logic, it is in the pipeline. Thus, physically there will be three units to be federated. But this logic will negate the other more applicable criteria of ethnicity and linguistics.
Ethnically, too, there have been various claims, with the Limbuwan claim being the loudest. It has even started to have a parallel government in the east. In the name of ethnicity, it has overstepped into another ethnic jurisdiction in the south.
Similarly, the call for one Madhes oversteps several ethnic communities with distinctly different cultural, linguistic and other forms of identities inside the flat tarai itself. One basic flaw of the ethnic or linguistic logic is that several communities have no specific territorial base and are spread throughout the country. The basic flaw of the geographic logic is that it ignores the other vital social criteria of ethnicity, linguistics and cultural identity.
If the issue of an acceptable federal structure is arrived at, there will be several issues of distribution of power and resources. Too much of power in the centre will be resented by the units and too much of power in the units will result either in a weak nation state or it may lead to tendencies in the units to secede from the nation state. Making adequate safeguards will require great national perseverance before the constitution is finalized.
Another major issue to be resolved in the new constitution is the question of fair representation. There are over a hundred different communities -- large or small in size -- but with distinct identity all the same. All will have to be satisfactorily accommodated. This issue is different from the ethnic or geographic issue: it refers to issues of gender, minority, marginalized groups, under-representation and so on. These issues have been voiced very vociferously, without arriving at a suitable solution during the interim period.
Apart from the division between the units and the central state, there are serious issues regarding the form of government: whether Nepal should adopt a parliamentary or presidential form of government both at the central and at the unit levels. If it prefers to have the parliamentary form, should the parliament retain control over the executive or should the PM have the power to dissolve the parliament and hold fresh election as in the past? If Nepal should have a presidential form of government, how will the president remain accountable to the parliament?
The above is not an exhaustive list of serious issues, but the purpose of this writer is to indicate how serious is the work ahead. From the way the CA has been moving, one can suspect that a wholesome product of a constitution can be accomplished in the given timeframe of two years out of which more than four months have already elapsed without framing a single article of the constitution.
Time is an important factor, but even more important factor is the seriousness in the leadership of the big parties which are still struggling to establish supremacy over each other. If this wrangling is not stopped, the sovereign people may again give a clarion call for another political uprising.
By DR KHAGENDRA N SHARMA
It has been four months since the Constituent Assembly (CA) was formally announced. But not a single word of the constitution has been written yet. It is true that the country was declared a republic in the first session of the CA, but it was just a formalization of a decision already made by the Interim Legislative-Parliament. So, the CA cannot claim the credit for the termination of the monarchy. The CA has created the posts of president and vice-president of the republic, but it is still an interim arrangement and the powers and functions of these posts will have to be redefined in the context of the new constitution. Thus, the whole function of writing a new constitution remains unattended.
There are two different types of problems facing the CA and both of them are of a serious nature. The first problem consists of the processual aspects of the constitution making -- the how part of it. It is reported that some rules have been finalized regarding the processual aspects like forming different committees through which the ideas will filter culminating in the provisions of the constitution. Much time will be needed to pass through all the committees. Apart from that, ample field work will have to be done to ascertain and analyze the views of the people at the grassroots. These ideas will have to be articulated thoroughly in the CA and placed in the hands of skilful constitutional experts to convert into appropriate provisions of the constitution.
The CA has been too large and unwieldy a body to articulate issues effectively and make decisions collectively. This aside, the CA has also to function as the Legislative-Parliament. It is a pity that the legislative part will consume a significant portion of the two years time in which the constitution has to be completed. So, the CA will have only a small part of the allotted time.
Given the fractured coalition, there will be numerous differences of thoughts among the parties, both within and without the coalition partners. The incongruous make-up of the fractured coalition will be naturally reflected in the CA. The decisions are expected to be unanimous in an ideal situation, but it is very unlikely in the present situation, given the protracted bargaining in the whole political process. So, decisions are expected to be made, if at all, simply by the required two-thirds majority.
The second problem is substantive, subject-matter questions pertaining to the various aspects of the body of the proposed constitution. These problems are so serious that it is inconceivable that the constitution can be made in the limited given time. The most problematic and difficult issues are those regarding the restructuring of the state. It has been promised that Nepal will be a federal state. Sentimentally, it is a fine promise, but there is no uniform concept of the federation. Before and during the CA election, all the parties talked of the federal structure for future Nepal, but no party except the CPN (Maoist) had even a vague concept of the proposed federation. The Maoists had proposed a distinct federal structure, but it has raised more questions than probable answers and it will be difficult to sell the concept to all the parties for the following reasons.
The Maoists had raised a general awakening among the masses for the concept of the federation during the decade-long conflict, but the concept was understood, articulated and popularized by different communities very differently during the interim period leading to the CA election.
In most of the cases, there has been ethnic orientation, but language had also played a big part in sensitizing the people. If these two criteria are accepted as the basis of federalizing the state, then there will be more than a hundred units to be federated. That will be simply unimaginable. Then there is the bigger criterion of space or geographical divisions. But geography does not go by homogenous ethnicity, linguistics or cultural factors.
The tarai movement has strongly voiced the concept of one Madhes. It has raised several potentially dangerous issues. If the topography of the country is to be taken as the criterion of breaking the state, there will be three major types -- the flat plains, the high mountains and the moderate hills in the middle. Taking cue from the Madhes call, the communities in the high mountains have already started to make claims for a mountainous state all along the north. The mid-hills have not yet raised such a demand but given the logic, it is in the pipeline. Thus, physically there will be three units to be federated. But this logic will negate the other more applicable criteria of ethnicity and linguistics.
Ethnically, too, there have been various claims, with the Limbuwan claim being the loudest. It has even started to have a parallel government in the east. In the name of ethnicity, it has overstepped into another ethnic jurisdiction in the south.
Similarly, the call for one Madhes oversteps several ethnic communities with distinctly different cultural, linguistic and other forms of identities inside the flat tarai itself. One basic flaw of the ethnic or linguistic logic is that several communities have no specific territorial base and are spread throughout the country. The basic flaw of the geographic logic is that it ignores the other vital social criteria of ethnicity, linguistics and cultural identity.
If the issue of an acceptable federal structure is arrived at, there will be several issues of distribution of power and resources. Too much of power in the centre will be resented by the units and too much of power in the units will result either in a weak nation state or it may lead to tendencies in the units to secede from the nation state. Making adequate safeguards will require great national perseverance before the constitution is finalized.
Another major issue to be resolved in the new constitution is the question of fair representation. There are over a hundred different communities -- large or small in size -- but with distinct identity all the same. All will have to be satisfactorily accommodated. This issue is different from the ethnic or geographic issue: it refers to issues of gender, minority, marginalized groups, under-representation and so on. These issues have been voiced very vociferously, without arriving at a suitable solution during the interim period.
Apart from the division between the units and the central state, there are serious issues regarding the form of government: whether Nepal should adopt a parliamentary or presidential form of government both at the central and at the unit levels. If it prefers to have the parliamentary form, should the parliament retain control over the executive or should the PM have the power to dissolve the parliament and hold fresh election as in the past? If Nepal should have a presidential form of government, how will the president remain accountable to the parliament?
The above is not an exhaustive list of serious issues, but the purpose of this writer is to indicate how serious is the work ahead. From the way the CA has been moving, one can suspect that a wholesome product of a constitution can be accomplished in the given timeframe of two years out of which more than four months have already elapsed without framing a single article of the constitution.
Time is an important factor, but even more important factor is the seriousness in the leadership of the big parties which are still struggling to establish supremacy over each other. If this wrangling is not stopped, the sovereign people may again give a clarion call for another political uprising.
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)
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)
Monday, September 8, 2008
India and Nepal’s Constituent Assembly
Kanak Mani Dixit
http://www.hindu.com/2008/03/07/stories/2008030755531000.htm
The Indian government is duty-bound to prevent the criminal-militant nexus from using Bihar and Uttar Pradesh as a base from which to threaten the Constituent Assembly process in Nepal.
The citizens of Nepal go in for Constituent Assembly elections on April 10, to put in place a 601-member House that has the dual responsibility of drafting a new constitution and serving as Parliament during the interim. The Constituent Assembly is a necessary condition for the country to achieve political stability, sustainable peace and a return to pluralism, nine years after the last general elections. In between, the population has suffered the Maoist “people 217;s war,” a dirty reaction by the state, the autocracy of Gyanendra, an unprecedented people’s movement that rejected royal autocracy and Maoist violence, and heightened identity-based assertions that continue to this day. The hope is that the Constituent Assembly will define a democratic constitution that will simultaneously address the many conflicting and complementary demands of marginalised minorities and, at long last, provide stable politics as a platform for economic progress.
India too seeks stability in this country that runs along the northern frontier of Uttar Pradesh and Bihar, and it has done its bit as an interlocutor in the recent past. Having facilitated the discussions in New Delhi in the autumn of 2005 that brought the Maoists to an understanding with the parliamentary parties, New Delhi is now asked, specifically, to rein in militants who have been engaged in bombings and targeted killings in Nepal’s Tarai plains while taking refuge across the open border. These militants — most importantly the one known as the Janatantrik Mukti Morcha-Jwala Singh — hold the ability to destabilise the country as it goes in for elections.
Meanwhile, the Indian intelligentsia should be alert to attempts by Hindutva forces, especially political elements along the borderland, to force their agenda on the Nepali people. This January, L.K. Advani of the Bharatiya Janata Party launched a blistering attack on the UPA’s Nepal policy and advocated a Hindu monarchy, while exaggerating links between Nepal’s Maoists and Indian naxalites.
To be sure, there are more than enough extremist threats to the polls from within Nepal. Having come to open politics barely two years ago, the Communist Party of Nepal (Maoist) is capable of widespread intimidation during its first electoral exercise, to try to stave off humiliation at the ballot box. The polls could also be destabilised by a welter of violent newborn groups. Many of these are receiving encouragement, if not support, from the royalists, who believe (correctly) that the political parties will use the Constituent Assembly to do away with the monarchy once and for all.
While the Maoists, militants and arch-conservatives within Nepal are to be tackled domestically, it is the responsibility of the Indian authorities to halt the ongoing activities of the JTMM-JS, which over the past two years have operated with impunity from Indian towns such as Sitamarhi, Raxaul, Darbhanga and Gorakhpur. The State governments in Patna and Lucknow must not allow local politics to wreck Nepal’s return to normalcy. It must also insist that the Madhesi militants lay down arms and talk to Kathmandu, or at the very least submit to a ceasefire. New Delhi has the clout, and should put it to good use when so much is at stake.Madhes rises
The mass upsurge of the People’s Movement of April 2006 sought peace and pluralism, and mandated the writing of a new constitution to redraw state-society relations. What is known as the Madhes Movement of last winter was a spontaneous uprising by the people of Tarai-plains origin who have long felt excluded amidst the highlander identification of the nation-state. ‘Madhesi’ is an amorphous term referring to caste categories of the eastern Tarai in particular, but the movement represented a historic demand of plains people for inclusion in the national mainstream. And indeed, the mass mobilisation of the Madhes Movement has changed the face of Nepali society, and new political forces have emerged to take advantage of the space that has opened up.
Prime Minister Girija Prasad Koirala was unable to countenance the identity-led nature of the agitation in the Tarai, heretofore a docile vote bank for his Nepali Congress party. He was therefore slow in addressing the Madhesi demands, which referred to recognition and compensation of those killed during the previous year’s agitation, proportional representation in state organs (including the army), changes in electoral laws to enhance Madhesi participation, and so on. As the government procrastinated, the demands became more strident and even unrealistic, including self-determination and the declaration of the 500-by-20 mile Tarai plains as a single province — “Ek Madhes, ek Pradesh.”
Though riding a wave of anti-Kathmandu sentiment across the Tarai, the most critical weakness of the Madhesi leadership was perhaps that it tended to represent the eastern-Tarai caste categories. It would be difficult to maintain the pan-Tarai momentum for long, because, like the country taken as a whole, the plains too are divided by language, faith, caste, class, religion, indigenity and point of origin.
As time went on, it became clear that quite a few among the Madhesi leadership were seeking consortium with the royalists of Kathmandu, as well as the Hindutva forces across the border. Hindu-right organisations in Nepal have a limited base, and for long drew their influence and power by proximity to the royal palace. But combine the Indian fundamentalists, sections of Madhesi militants, royalist politicians and the criminal gangs of Bihar and Uttar Pradesh acting in loose concert, and you suddenly have quite a vicious brew to upset the election cart.
At the Narayanhiti royal palace, Gyanendra seemed energised by the turn of events, which included strikes across the plains over the month of February and what amounted to an economic blockade of Kathmandu Valley by the Madhesi activists. He sent emissaries to meet with Hindutva and BJP stalwarts in India in a bid to revive the flagging fortunes of the monarchy. For a while, a couple of weeks ago, it suddenly looked as if the Constituent Assembly would be held hostage by the BJP-Congress rivalry within India, with the former all set to loudly proclaim the restoration of the Hindu monarchy in Nepal as a political plank.
Fortunately, while the role of other Indian entities and organisations cannot be vouched for, at this stage the Foreign Ministry in South Block played its card in favour of a pluralistic, representative evolution in Nepal. By extending the tenure of Indian Ambassador Shiv Shankar Mukherjee until after the April elections, the Manmohan Singh government also sent a message committing its own agenda and standing to the holding of elections on schedule in Nepal.
The polls having already been rescheduled twice before, the polity would have been unable to sustain another postponement, which would in all likelihood have led to a right-wing, militarist shift in government. With the Koirala government becoming suddenly flexible in negotiations, the Madhesi leadership known to favour a poll postponement had no option but to call off the agitations in the Tarai. By the end of February, all the credible political forces had been dragged and cajoled into election mode, and the people of hill and plain alike were finally certain of being able to exercise their franchise.Towards April 10
The sovereign, elected Constituent Assembly is as close to a magic wand as the Nepali people can hope for. It is certainly one that they deserve, to deliver them from the extreme instability, political violence and the democracy deficit of the last decade. The economy is currently at a standstill, even while the northern and southern neighbours grow at near double-digit rates. The people of Nepal have not had a whiff of the so-called peace dividend, nor any post-conflict rehabilitation to speak of, almost two years after the “people’s war” ended.
For the 601-member House, the challenges of constitution-writing, as well as government formation, will be enormous. To begin with, the legislators must rise above the extreme populism that has gripped Nepali politics like a malignancy over the last two years, and the lists of party candidates are not inspiring. Besides, the modalities of the Constituent Assembly’s functioning have not been discussed and there is the possibility of great confusion and anarchy immediately after the elections. That is clearly an urgent matter to be discussed in the days ahead, but for the moment the job is to protect the elections from two quarters: those parties inclined to participate but influence the polls through fear and intimidation, and those forces within and without who will try to disrupt the elections through killings, kidnappings and bombings.
Fortunately, we know the potential spoilers. The Nepali intelligentsia and civil society must keep an eye on the domestic forces — royalist politicians, militants, criminals as well as the unruly ranks of the CPN (Maoist) — to prevent an election derailment. India’s opinion-makers can help Nepal in its return to normalcy by watchdogging the Hindutva-inclined monarchists so that they have no scope to interfere in the affairs of a neighbour. The Indian government, meanwhile, is duty-bound to prevent the criminal-militant nexus from using Bihar and Uttar Pradesh as a base from which to threaten the Constituent Assembly process. A peaceful, prosperous Nepal will reverberate in the Ganga plains as well.
http://www.hindu.com/2008/03/07/stories/2008030755531000.htm
The Indian government is duty-bound to prevent the criminal-militant nexus from using Bihar and Uttar Pradesh as a base from which to threaten the Constituent Assembly process in Nepal.
The citizens of Nepal go in for Constituent Assembly elections on April 10, to put in place a 601-member House that has the dual responsibility of drafting a new constitution and serving as Parliament during the interim. The Constituent Assembly is a necessary condition for the country to achieve political stability, sustainable peace and a return to pluralism, nine years after the last general elections. In between, the population has suffered the Maoist “people 217;s war,” a dirty reaction by the state, the autocracy of Gyanendra, an unprecedented people’s movement that rejected royal autocracy and Maoist violence, and heightened identity-based assertions that continue to this day. The hope is that the Constituent Assembly will define a democratic constitution that will simultaneously address the many conflicting and complementary demands of marginalised minorities and, at long last, provide stable politics as a platform for economic progress.
India too seeks stability in this country that runs along the northern frontier of Uttar Pradesh and Bihar, and it has done its bit as an interlocutor in the recent past. Having facilitated the discussions in New Delhi in the autumn of 2005 that brought the Maoists to an understanding with the parliamentary parties, New Delhi is now asked, specifically, to rein in militants who have been engaged in bombings and targeted killings in Nepal’s Tarai plains while taking refuge across the open border. These militants — most importantly the one known as the Janatantrik Mukti Morcha-Jwala Singh — hold the ability to destabilise the country as it goes in for elections.
Meanwhile, the Indian intelligentsia should be alert to attempts by Hindutva forces, especially political elements along the borderland, to force their agenda on the Nepali people. This January, L.K. Advani of the Bharatiya Janata Party launched a blistering attack on the UPA’s Nepal policy and advocated a Hindu monarchy, while exaggerating links between Nepal’s Maoists and Indian naxalites.
To be sure, there are more than enough extremist threats to the polls from within Nepal. Having come to open politics barely two years ago, the Communist Party of Nepal (Maoist) is capable of widespread intimidation during its first electoral exercise, to try to stave off humiliation at the ballot box. The polls could also be destabilised by a welter of violent newborn groups. Many of these are receiving encouragement, if not support, from the royalists, who believe (correctly) that the political parties will use the Constituent Assembly to do away with the monarchy once and for all.
While the Maoists, militants and arch-conservatives within Nepal are to be tackled domestically, it is the responsibility of the Indian authorities to halt the ongoing activities of the JTMM-JS, which over the past two years have operated with impunity from Indian towns such as Sitamarhi, Raxaul, Darbhanga and Gorakhpur. The State governments in Patna and Lucknow must not allow local politics to wreck Nepal’s return to normalcy. It must also insist that the Madhesi militants lay down arms and talk to Kathmandu, or at the very least submit to a ceasefire. New Delhi has the clout, and should put it to good use when so much is at stake.Madhes rises
The mass upsurge of the People’s Movement of April 2006 sought peace and pluralism, and mandated the writing of a new constitution to redraw state-society relations. What is known as the Madhes Movement of last winter was a spontaneous uprising by the people of Tarai-plains origin who have long felt excluded amidst the highlander identification of the nation-state. ‘Madhesi’ is an amorphous term referring to caste categories of the eastern Tarai in particular, but the movement represented a historic demand of plains people for inclusion in the national mainstream. And indeed, the mass mobilisation of the Madhes Movement has changed the face of Nepali society, and new political forces have emerged to take advantage of the space that has opened up.
Prime Minister Girija Prasad Koirala was unable to countenance the identity-led nature of the agitation in the Tarai, heretofore a docile vote bank for his Nepali Congress party. He was therefore slow in addressing the Madhesi demands, which referred to recognition and compensation of those killed during the previous year’s agitation, proportional representation in state organs (including the army), changes in electoral laws to enhance Madhesi participation, and so on. As the government procrastinated, the demands became more strident and even unrealistic, including self-determination and the declaration of the 500-by-20 mile Tarai plains as a single province — “Ek Madhes, ek Pradesh.”
Though riding a wave of anti-Kathmandu sentiment across the Tarai, the most critical weakness of the Madhesi leadership was perhaps that it tended to represent the eastern-Tarai caste categories. It would be difficult to maintain the pan-Tarai momentum for long, because, like the country taken as a whole, the plains too are divided by language, faith, caste, class, religion, indigenity and point of origin.
As time went on, it became clear that quite a few among the Madhesi leadership were seeking consortium with the royalists of Kathmandu, as well as the Hindutva forces across the border. Hindu-right organisations in Nepal have a limited base, and for long drew their influence and power by proximity to the royal palace. But combine the Indian fundamentalists, sections of Madhesi militants, royalist politicians and the criminal gangs of Bihar and Uttar Pradesh acting in loose concert, and you suddenly have quite a vicious brew to upset the election cart.
At the Narayanhiti royal palace, Gyanendra seemed energised by the turn of events, which included strikes across the plains over the month of February and what amounted to an economic blockade of Kathmandu Valley by the Madhesi activists. He sent emissaries to meet with Hindutva and BJP stalwarts in India in a bid to revive the flagging fortunes of the monarchy. For a while, a couple of weeks ago, it suddenly looked as if the Constituent Assembly would be held hostage by the BJP-Congress rivalry within India, with the former all set to loudly proclaim the restoration of the Hindu monarchy in Nepal as a political plank.
Fortunately, while the role of other Indian entities and organisations cannot be vouched for, at this stage the Foreign Ministry in South Block played its card in favour of a pluralistic, representative evolution in Nepal. By extending the tenure of Indian Ambassador Shiv Shankar Mukherjee until after the April elections, the Manmohan Singh government also sent a message committing its own agenda and standing to the holding of elections on schedule in Nepal.
The polls having already been rescheduled twice before, the polity would have been unable to sustain another postponement, which would in all likelihood have led to a right-wing, militarist shift in government. With the Koirala government becoming suddenly flexible in negotiations, the Madhesi leadership known to favour a poll postponement had no option but to call off the agitations in the Tarai. By the end of February, all the credible political forces had been dragged and cajoled into election mode, and the people of hill and plain alike were finally certain of being able to exercise their franchise.Towards April 10
The sovereign, elected Constituent Assembly is as close to a magic wand as the Nepali people can hope for. It is certainly one that they deserve, to deliver them from the extreme instability, political violence and the democracy deficit of the last decade. The economy is currently at a standstill, even while the northern and southern neighbours grow at near double-digit rates. The people of Nepal have not had a whiff of the so-called peace dividend, nor any post-conflict rehabilitation to speak of, almost two years after the “people’s war” ended.
For the 601-member House, the challenges of constitution-writing, as well as government formation, will be enormous. To begin with, the legislators must rise above the extreme populism that has gripped Nepali politics like a malignancy over the last two years, and the lists of party candidates are not inspiring. Besides, the modalities of the Constituent Assembly’s functioning have not been discussed and there is the possibility of great confusion and anarchy immediately after the elections. That is clearly an urgent matter to be discussed in the days ahead, but for the moment the job is to protect the elections from two quarters: those parties inclined to participate but influence the polls through fear and intimidation, and those forces within and without who will try to disrupt the elections through killings, kidnappings and bombings.
Fortunately, we know the potential spoilers. The Nepali intelligentsia and civil society must keep an eye on the domestic forces — royalist politicians, militants, criminals as well as the unruly ranks of the CPN (Maoist) — to prevent an election derailment. India’s opinion-makers can help Nepal in its return to normalcy by watchdogging the Hindutva-inclined monarchists so that they have no scope to interfere in the affairs of a neighbour. The Indian government, meanwhile, is duty-bound to prevent the criminal-militant nexus from using Bihar and Uttar Pradesh as a base from which to threaten the Constituent Assembly process. A peaceful, prosperous Nepal will reverberate in the Ganga plains as well.
The President of Nepal: Constitutional Role and Responsibilities
By BIPIN ADHIKARI
http://www.nepalnews.com.np/archive/2008/others/guestcolumn/sep/guest_columns_02.php
The President of Nepal is the head of the newly established republic. In this capacity, 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. For example, he has powers in the judicial (Articles 103 and 117), legislative (Articles 87-88), and executive (Articles 36A and 51-52) fields. He has also military powers (Article 144), diplomatic powers (Article 150) and powers of emergency (Art 143). However, his capacity as the head of the executive branch of government is largely a legal fiction. The reason is - the President exercises most of his powers upon the recommendation and advice of the Council of Ministers 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.
The Nature of Presidency : In a typical Westminster tradition, the powers of the head of the state under the Interim Constitution implies that he can do no wrong. The President, like the former constitutional monarch of Nepal, 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. This does not mean that the function to be exercised by the President on the advice of the Prime Minister or any other constitutional entity is just formal or mechanical. 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. He can always advise the Prime Minister on any issue of governmental importance, share his point of view with him on a particular issue, and let the Prime Minister know what he thinks is in the best interest of the country. 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 in a particular way. 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. This is the nature of the presidency that the Interim Constitution has embarked on.
Some contradictions : While making it obvious, that this is a system based in the doctrine of ministerial responsibility, the Interim Constitution does not state 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." (Article 37(1) In this formulation, the Interim Constitution ignores altogether the role of the President in the exercise of key constitutional powers that it has elaborated under different Articles. It also does not give him the power to warn or alert the government in express words. 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. Additionally, 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.
These constitutional 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. Apparently, his role in the constitutional system is more than receiving and sending envoys to foreign countries and hosting state visits. Therefore, the argument that Nepal has moved from 'constitutional monarchy' to 'ceremonial presidency' is factually wrong.
Constitutional Role on the appointment of the Prime Minister: 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 under Article 36A(3) 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 that Nepal has practiced over more than a decade, it is the responsibility of the President to find and appoint a prime minister for the country from the Constituent Assembly. Such a prime minister could be a consensus Prime Minister, or a prime minister with simple majority support, but in any case, he/she must be appointed first by the President to go through Clause (1) or (2) of Article 38. The President 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 (or the earlier traditions in this regard) 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.
Conclusion: 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.
(Excerpts of a paper presented at a forum jointly organized by the Consortium of Constitutional Experts (CONCOE) and Tribhuvan University Faculty of Law, Kathmandu, August 25, 2008. The author, a constitutional expert, can be reached at lawyers_inc_nepal@yahoo.com )
(Editor’s Note: Nepalis, wherever they live, as well as friends of Nepal around the globe are requested to contribute their views/opinions/recollections etc. on issues concerning present day Nepal to the Guest Column of Nepalnews. Length of the article should not be more than 1,000 words and may be edited for the purpose of clarity and space. Relevant photos as well as photo of the author may also be sent along with the article. Please send your write-ups to editors@mos.com.np)
http://www.nepalnews.com.np/archive/2008/others/guestcolumn/sep/guest_columns_02.php
The President of Nepal is the head of the newly established republic. In this capacity, 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. For example, he has powers in the judicial (Articles 103 and 117), legislative (Articles 87-88), and executive (Articles 36A and 51-52) fields. He has also military powers (Article 144), diplomatic powers (Article 150) and powers of emergency (Art 143). However, his capacity as the head of the executive branch of government is largely a legal fiction. The reason is - the President exercises most of his powers upon the recommendation and advice of the Council of Ministers 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.
The Nature of Presidency : In a typical Westminster tradition, the powers of the head of the state under the Interim Constitution implies that he can do no wrong. The President, like the former constitutional monarch of Nepal, 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. This does not mean that the function to be exercised by the President on the advice of the Prime Minister or any other constitutional entity is just formal or mechanical. 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. He can always advise the Prime Minister on any issue of governmental importance, share his point of view with him on a particular issue, and let the Prime Minister know what he thinks is in the best interest of the country. 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 in a particular way. 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. This is the nature of the presidency that the Interim Constitution has embarked on.
Some contradictions : While making it obvious, that this is a system based in the doctrine of ministerial responsibility, the Interim Constitution does not state 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." (Article 37(1) In this formulation, the Interim Constitution ignores altogether the role of the President in the exercise of key constitutional powers that it has elaborated under different Articles. It also does not give him the power to warn or alert the government in express words. 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. Additionally, 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.
These constitutional 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. Apparently, his role in the constitutional system is more than receiving and sending envoys to foreign countries and hosting state visits. Therefore, the argument that Nepal has moved from 'constitutional monarchy' to 'ceremonial presidency' is factually wrong.
Constitutional Role on the appointment of the Prime Minister: 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 under Article 36A(3) 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 that Nepal has practiced over more than a decade, it is the responsibility of the President to find and appoint a prime minister for the country from the Constituent Assembly. Such a prime minister could be a consensus Prime Minister, or a prime minister with simple majority support, but in any case, he/she must be appointed first by the President to go through Clause (1) or (2) of Article 38. The President 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 (or the earlier traditions in this regard) 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.
Conclusion: 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.
(Excerpts of a paper presented at a forum jointly organized by the Consortium of Constitutional Experts (CONCOE) and Tribhuvan University Faculty of Law, Kathmandu, August 25, 2008. The author, a constitutional expert, can be reached at lawyers_inc_nepal@yahoo.com )
(Editor’s Note: Nepalis, wherever they live, as well as friends of Nepal around the globe are requested to contribute their views/opinions/recollections etc. on issues concerning present day Nepal to the Guest Column of Nepalnews. Length of the article should not be more than 1,000 words and may be edited for the purpose of clarity and space. Relevant photos as well as photo of the author may also be sent along with the article. Please send your write-ups to editors@mos.com.np)
के राष्ट्रपति थपना मात्र हुन् ? - डा विपिन अधिकारी
राष्ट्रपति थपनाका लागि मात्र चाहिने होेइन, उनको स्पष्ट संवैधानिक भूमिका छ ।
http://www.kantipuronline.com/kolnepalinews.php?&nid=159792
नेपालको अन्तरिम संविधान २०६३ को चौथो संशोधनद्वारा राजतन्त्रको अन्त्य गरी गणतन्त्र स्थापना गरिएपछि राष्ट्रपति तथा उपराष्ट्रपतिको निर्वाचन भएको पनि दर्ुइ महिना बितिसकेको छ । यसबीच राष्ट्रपतिद्वारा राष्ट्राध्यक्षको रूपमा कतिपय महत्त्वपर्ूण्ा काम कारबाही गर्ने प्रयास पनि भएका छन् । तर यति हु“दाह“ुदै पनि संवैधानिक राजतन्त्रलाई प्रतिस्थापन गर्ने 'संवैधानिक' राष्ट्रपतिको पद केवल आलंकारिक मात्र हो कि - यस्तो भ्रम अझै छ ।
सामान्यतया आलंकारिक राजा वा राष्ट्रपतिको शासन सञ्चालन प्रक्रियामा कुनै भूमिका रह“दैन । उनी केवल राष्ट्रको अलंकारका रूपमा राखिएका हुन्छन् । निजको उपस्थिति राष्ट्राध्यक्षको रूपमा अधिकार वा शक्तिविहीन हुन्छ । राजनीतिक रूपमा विशेष महत्त्व नराख्ने तर कूटनीतिक मर्यादा कायम राख्ने सम्बन्धमा मात्र उनीहरूको भूमिका हुन्छ । तर संवैधानिक राजा वा राष्ट्रपति कार्यकारिणी शक्तिका प्रतीक पनि हुन्छन् । उनको महत्त्व केवल प्रतिकात्मक, समारोहात्मक वा आकर्षाात्मक हु“दैन, राष्ट्राध्यक्षका रूपमा विशेष महत्त्वका राजनीतिक अधिकारहरूको प्रयोग पनि गरिरहेका हुन्छन् ।
त्यस्ता अधिकारहरू संसदीय प्रणालीमा संसद्प्रति उत्तरदायी मन्त्रिपरिषद् वा प्रधानमन्त्री वा संविधानद्वारा व्यवस्थित अन्य कुनै विशेष संवैधानिक अंगहरूको सल्लाहमा मात्र प्रयोग गरिएका हुन्छन् । त्यसो हुनाले संवैधानिक राष्ट्र्रपतिलाई संसदीय प्रणालीमा शासन सत्ताबाट उम्कन बिल्कुलै सम्भव हु“दैन । उनी राष्ट्र वा यसको शासन वा सत्ताको वैधानिक प्रमुख हुन्छन् । वैधानिक हैसियतका कारण कतिपय कार्यकारिणी अधिकारको प्रयोग उनकै हातबाट हुन्छ ।
नेपालको अन्तरिम संविधानलाई हर्ेदा राष्ट्रपति नेपाली सेनाको सर्वोच्च परमाधिपति हुने तथा सोही क्षमतामा सेनाको नियन्त्रण, परिचालन र व्यवस्थापन गर्न सक्ने, आवश्यक भएका अवस्थामा अध्यादेश उनीबाटै जारी हुनसक्ने, प्रधानन्यायाधीशजस्तो विशिष्ट व्यक्तिको नियुक्ति गर्ने, संसद्लाई सम्बोधन गर्ने र समग्र रूपमा संविधानको संरक्षण तथा पालना गर्ने कर्तव्य भएका निर्वाचित राष्ट्राध्यक्ष कुनै पनि हालतमा आलंकारिक भन्न नमिल्ने स्थिति छ । वास्तवमा संविधानको चौथो संशोधनले साविकमा संवैधानिक राजालाई जगेडामा राखेको अवस्थामा सामान्यतया प्रधानमन्त्री र मन्त्रिपरिषद्ले प्रयोग गर्दै आएका कतिपय कार्यकारिणी अधिकारहरू पनि अब उप्रान्त प्रधानमन्त्री वा मन्त्रिपरिषद्को सिफारिसमा राष्ट्रपतिले प्रयोग गर्ने पुरानो संवैधानिक मान्यतालाई निरन्तरता प्रदान गरेकै छ । यद्यपि यी सबै शक्तिहरूको प्रयोग राष्ट्रपतिले मन्त्रिपरिषद् वा अन्य सम्बन्धित निकायको सिफारिसमा गर्छन् । यति धेरै कार्यकारिणी शक्तिको प्रयोगमा प्रत्यक्ष सहभागिता भएका राष्ट्रपतिलाई संवैधानिक राष्ट्रपतिकै रूपमा हेरिनर्ुपर्छ ।
संवैधानिक राष्ट्रपतिसम्बन्धी उपरोक्त मान्यताहरू प्रस्ट हु“दाह“ुदै पनि संविधान निर्माताहरूले अवधारणागत आधारमा संसदीय पद्घतिअर्न्तर्गतको राष्ट्रपति पदको आधारभूत मर्यादाहरूलाई संविधानमा कायम राख्न भने छुटाएको देखिन्छ । एकातर्फसंविधान निर्माताहरूले मन्त्रिपरिषद् वा अन्य संवैधानिक इकाइको सल्लाहमा कार्य गर्ने संवैधानिक राष्ट्रपतिको स्पष्ट परिकल्पना गरेको देखिन्छ भने अर्कोतर्फसंविधानकै धारा ३७-१) ले नेपालको कार्यकारिणी अधिकार मन्त्रिपरिषद्मा मात्र रहने गरेको छ । यस प्रावधानले स्पष्ट रूपमा राष्ट्रपतिसहितको कार्यकारिणी वा साविकको 'किङ इन काउन्सिल' को अवधारणालाई पन्छाएको देखिन्छ । तर यसलाई इन्कार गर्न सकिने परिस्थिति पनि देखि“दैन । संविधानमै कतिपय कार्यकारिणी अधिकार राष्ट्रपतिको हातबाट प्रयोग हुने स्पष्ट रूपमा लेखिएका कुरालाई कसरी झूटो भन्न्ो ?
त्यस्ता राष्ट्रपतिले संविधानको पालना र संरक्षण कसरी गराउलान्, जसलाई पर्दापछाडि नै भए पनि बहालवाला प्रधानमन्त्री वा मन्त्रिपरिषद्लाई सल्लाह दिने, मार्गदर्शन गर्ने र सचेत गराउने अधिकार दिइएको छैन । त्यस्तै राष्ट्रपतिले राष्ट्राध्यक्षका रूपमा प्रधानमन्त्रीलाई आवश्यक मार्गदर्शन वा सहयोग गर्न उनबाट निरन्तर मन्त्रिपरिषद्को कामकारबाही र विभिन्न समसामयिक विषयमा सरकारको ताजा दृष्टिकोणबारे सूचना एवं जानकारी प्राप्त गर्नुपर्ने हुन्छ । सोही उद्देश्यका लागि संवैधानिक अंगका प्रमुखहरू, जसले राष्ट्रपतिलाई आफ्नो वाषिर्क प्रतिवेदन बुझाउनुपर्ने हुन्छ, उनीहरूस“ग पनि राष्ट्रपतिले बराबर 'ब्रिप्रिmङ' लिनुपर्ने हुन्छ । यी मान्यताहरूले कार्यपालिका तथा संवैधानिक अंगहरूलाई अझ राष्ट्रउन्मुख हुन मद्दत गर्छन् ।
हुन त यस संविधानअर्न्तर्गत बहुमतको अहंकारबाट संसद्ले पास गरेको कुनै विधेयकलाई मानव अधिकार, सामाजिक न्याय तथा राष्ट्रिय स्वार्थको रक्षाका लागि पुनः एकपटक विचार्रार्थ संसद्मै फिर्ता पठाउन सकिने संवैधानिक राष्ट्रपतिको अधिकारलाई संविधान निर्माताहरूले चटक्कै बिर्सिए । अहिलेको संविधानअनुसार राष्ट्रपतिको अधिकार संसद्ले पास गरेको कानुनलाई प्रमाणीकरण गर्नेसम्मको मात्र छ, उनले संसद्को विधायिकी प्रक्रियालाई राष्ट्रहितमा पुनः परिचालित गर्न सक्दैनन् ।
संविधानको धारा ३८ -१) र -२) ले प्रधानमन्त्रीको नियुक्ति प्रक्रियामा राष्ट्रपतिको भूमिकालाई प्रस्ट गर्न खोजेको देखि“दैन । संसदीय व्यवस्थामा प्रधानमन्त्रीको नियुक्ति राष्ट्राध्यक्षले गर्छन् । यस्तो नियुक्ति आमनिर्वाचनपछि संसद्मा देखिने दलहरूको राजनीतिक हैसियतका आधारमा सम्बन्ध्िात दलका नेताहरूस“गै परामर्श गरी राष्ट्राध्यक्षले गर्ने गरेको देखिन्छ । सरकार बनाउने कार्यमा पहिलो प्राथमिकता त्यस्तो दललाई दिइन्छ, जसले संसद्मा स्पष्ट बहुमत ल्याएको छ । त्यस्तो बहुमत प्राप्त दल नभएको अवस्थामा राष्ट्राध्यक्षले अवस्था हेरी संयुक्त सरकार वा एकल रूपमा बहुमत नभएको तर सबभन्दा ठूलो पार्टर्ीी नेतालाई प्रधानमन्त्री नियुक्त गरी संविधानबमोजिम तोकिएको अवधिमा संसद्मा विश्वासको मत प्राप्त गर्ने निर्देशन दिन्छन् । धारा ३८-१) र -२) को पर्रि्रेक्षमा पनि यही संसदीय मान्यतालाई पन्छाएर संवैधानिक प्रयोग गर्नुपर्ने आवश्यकता देखि“दैन ।
ताजा जनमतको मूल्यांकनका आधार तथा सक्षम सरकार दिन सक्ने विश्वासमा प्रधानमन्त्रीको नियुक्ति राष्ट्रपतिकै हातबाट हुनर्ुपर्छ । धारा ३८-२) ले यो तथ्यलाई स्पष्टस“ग उल्लेख गर्न नसकेको तथा नेपालका आफ्नै वैधानिक परम्पराहरूलाई मान्यता दि“दै राष्ट्रपतिले प्रधानमन्त्रीको नियुक्ति गरी विश्वासको मत लिन संसद् पठाउन नसकेको कारण हालै प्रधानमन्त्रीको नियुक्ति प्रकरणमा राष्ट्रपतिले संसदीय मान्यता अंगीकार गर्न नसकेको तथा नियुक्ति कार्य सित्तैमा व्यवस्थापिका संसद्लाई जिम्मा लगाइदिएको टिप्पणी पनि सुनिएको छ ।
राष्ट्रपतिको भूमिकाको गैरराजनीतिक राष्ट्रिय पक्ष पनि छ । उनको निर्वाचन शून्यतामा भएको होइन । उनका पछाडि परम्परागत राजतन्त्रको लामो इतिहास छ । नेपालका राजा नेपालको वैधानिक परम्पराका बाहक मात्र थिएनन् कि नेपाली जनजीवनका धार्मिक, सांस्कृतिक तथा अन्य पक्षहरूस“ग समेत सरोकार राख्थे । निःसन्देह राष्ट्रपतिले पर्ूवराजालेेेेेेेेेेेे राष्ट्र्राध्यक्षका रूपमा निर्वाह गर्दै आएका धर्म, संस्कृति तथा सामाजिक क्षेत्रस“ग सम्बन्धित अन्य परम्परागत संलग्नतालाई पनि निरन्तरता दिन खोजेको देखिन्छ । यसलाई निरन्तरता दिनु संक्रमणकालको विवश्ाता पनि हो ।
राज्य शून्यतामा चल्न सक्दैन । तर राष्ट्र्रपतिको स्थिति कस्तो छ भने परम्पराको निर्वाह गरु“- त्यसमा आलोचना गर्नेको कमी छैन । नगरु“ संवैधानिक रिक्तता छ । नेपालका कस्ता मूल्यमान्यता तथा परम्पराहरू राजास“गै सती गएका छन् भन्ने कुरा नेपालीहरू क्रमशः बुझ्दैछन् । कतिलाई राष्ट्रपतिबाटै भए पनि आफ्नो धार्मिक, सांस्कृतिक वा जातीय गौरवको चिनो नमेटियोस् भन्ने छ । जबसम्म राजाले निर्वाह गरेका धार्मिक, सामाजिक वा परम्परागत काम-कारबाहीलाई नया“ संविधानद्वारा व्यवस्थापन गरि“दैन, राष्ट्रपतिले उपरोक्त कामलाई निरन्तरता दिइरहनु पर्ने हुन्छ । नेपाल अब हिन्दु राष्ट्र नरहेको तथा धर्मनिरपेक्ष राज्यको रूपमा राष्ट्र्राध्यक्षका सीमाहरू पनि स्थापित भइनसकेकाले यस्ता परम्परागत कामकारबाहीहरू कुन रूपमा सञ्चालन हुने भन्ने द्विविधा हटाउन उत्तिकै जरुरी छ । गणतन्त्र नेपालले अल्पसंख्यक समुदायको अपेक्षा र धर्मनिरपेक्षताको सिद्घान्तलाई कुन परिपाटीबाट अ“गाल्नेे हो- त्यसको निक्र्यौल गर्न पनि आवश्यक छ । समानताको पद्घति सबभन्दा कम विवादास्पद पद्घति हो । अतः राष्ट्रपतिद्वारा सबै धर्म, समुदाय र संस्कृत्रि्रति कम्तीमा समान स्नेह वा संरक्षणको दृष्टिकोण राख्न जरुरी हुन्छ ।
राष्ट्रपति थपनाका लागि मात्र चाहिने होेइन, उनको स्पष्ट संवैधानिक भूमिका छ । तर केमा प्रस्ट हुनर्ुपर्छ भने संवैधानिक राष्ट्रपति सामान्यतया प्रधानमन्त्री वा मन्त्रिपरिषद् अधिनस्थ राष्ट्रपति हुन्छन् । कुनै पनि विषयमा उनले प्रधानमन्त्रीस“ग छलफल गर्न वा राष्ट्राध्यक्षको रूपमा प्रधानमन्त्रीलाई आवश्यक सरसल्लाह दिन सक्छन् । त्यस्तो सल्लाह मान्नु-नमान्नु या त्यसलाई कति महत्त्व दिने भन्ने विषय अन्ततः प्रधानमन्त्रीको शासनाधिकारअर्न्तर्गत पर्छ । राष्ट्रपतिले प्रधानमन्त्रीलाई कस्तो सल्लाह दिएका थिए भन्ने विषय गोप्य मानिन्छ र त्यसलाई प्रकाशित गर्नु वा अन्य किसिमले र्सार्वजनिक जानकारीमा ल्याउनु संवैधानिक राष्ट्रपतिको गरिमाविरुद्घ हुन्छ । त्यस्तै प्रधानमन्त्रीले राष्ट्रपतिको सल्लाहका सम्बन्धमा कस्तो जवाफ दिएका थिए भन्ने विषय पनि गोप्य राख्नुपर्ने विषय हो । अन्ततः कार्यपालिकीय अधिकारको प्रयोग वा उत्तरदायित्व प्रधानमन्त्री तथा निजले बनाएको सरकारकै हुन्छ । संसदीय परिपाटीको मर्म यही हो ।
(अधिकारी संविधानविद् हुन् ।) lawyers_inc_nepal@yahoo.com
Posted on: 2008-09-07 17:42:29
http://www.kantipuronline.com/kolnepalinews.php?&nid=159792
नेपालको अन्तरिम संविधान २०६३ को चौथो संशोधनद्वारा राजतन्त्रको अन्त्य गरी गणतन्त्र स्थापना गरिएपछि राष्ट्रपति तथा उपराष्ट्रपतिको निर्वाचन भएको पनि दर्ुइ महिना बितिसकेको छ । यसबीच राष्ट्रपतिद्वारा राष्ट्राध्यक्षको रूपमा कतिपय महत्त्वपर्ूण्ा काम कारबाही गर्ने प्रयास पनि भएका छन् । तर यति हु“दाह“ुदै पनि संवैधानिक राजतन्त्रलाई प्रतिस्थापन गर्ने 'संवैधानिक' राष्ट्रपतिको पद केवल आलंकारिक मात्र हो कि - यस्तो भ्रम अझै छ ।
सामान्यतया आलंकारिक राजा वा राष्ट्रपतिको शासन सञ्चालन प्रक्रियामा कुनै भूमिका रह“दैन । उनी केवल राष्ट्रको अलंकारका रूपमा राखिएका हुन्छन् । निजको उपस्थिति राष्ट्राध्यक्षको रूपमा अधिकार वा शक्तिविहीन हुन्छ । राजनीतिक रूपमा विशेष महत्त्व नराख्ने तर कूटनीतिक मर्यादा कायम राख्ने सम्बन्धमा मात्र उनीहरूको भूमिका हुन्छ । तर संवैधानिक राजा वा राष्ट्रपति कार्यकारिणी शक्तिका प्रतीक पनि हुन्छन् । उनको महत्त्व केवल प्रतिकात्मक, समारोहात्मक वा आकर्षाात्मक हु“दैन, राष्ट्राध्यक्षका रूपमा विशेष महत्त्वका राजनीतिक अधिकारहरूको प्रयोग पनि गरिरहेका हुन्छन् ।
त्यस्ता अधिकारहरू संसदीय प्रणालीमा संसद्प्रति उत्तरदायी मन्त्रिपरिषद् वा प्रधानमन्त्री वा संविधानद्वारा व्यवस्थित अन्य कुनै विशेष संवैधानिक अंगहरूको सल्लाहमा मात्र प्रयोग गरिएका हुन्छन् । त्यसो हुनाले संवैधानिक राष्ट्र्रपतिलाई संसदीय प्रणालीमा शासन सत्ताबाट उम्कन बिल्कुलै सम्भव हु“दैन । उनी राष्ट्र वा यसको शासन वा सत्ताको वैधानिक प्रमुख हुन्छन् । वैधानिक हैसियतका कारण कतिपय कार्यकारिणी अधिकारको प्रयोग उनकै हातबाट हुन्छ ।
नेपालको अन्तरिम संविधानलाई हर्ेदा राष्ट्रपति नेपाली सेनाको सर्वोच्च परमाधिपति हुने तथा सोही क्षमतामा सेनाको नियन्त्रण, परिचालन र व्यवस्थापन गर्न सक्ने, आवश्यक भएका अवस्थामा अध्यादेश उनीबाटै जारी हुनसक्ने, प्रधानन्यायाधीशजस्तो विशिष्ट व्यक्तिको नियुक्ति गर्ने, संसद्लाई सम्बोधन गर्ने र समग्र रूपमा संविधानको संरक्षण तथा पालना गर्ने कर्तव्य भएका निर्वाचित राष्ट्राध्यक्ष कुनै पनि हालतमा आलंकारिक भन्न नमिल्ने स्थिति छ । वास्तवमा संविधानको चौथो संशोधनले साविकमा संवैधानिक राजालाई जगेडामा राखेको अवस्थामा सामान्यतया प्रधानमन्त्री र मन्त्रिपरिषद्ले प्रयोग गर्दै आएका कतिपय कार्यकारिणी अधिकारहरू पनि अब उप्रान्त प्रधानमन्त्री वा मन्त्रिपरिषद्को सिफारिसमा राष्ट्रपतिले प्रयोग गर्ने पुरानो संवैधानिक मान्यतालाई निरन्तरता प्रदान गरेकै छ । यद्यपि यी सबै शक्तिहरूको प्रयोग राष्ट्रपतिले मन्त्रिपरिषद् वा अन्य सम्बन्धित निकायको सिफारिसमा गर्छन् । यति धेरै कार्यकारिणी शक्तिको प्रयोगमा प्रत्यक्ष सहभागिता भएका राष्ट्रपतिलाई संवैधानिक राष्ट्रपतिकै रूपमा हेरिनर्ुपर्छ ।
संवैधानिक राष्ट्रपतिसम्बन्धी उपरोक्त मान्यताहरू प्रस्ट हु“दाह“ुदै पनि संविधान निर्माताहरूले अवधारणागत आधारमा संसदीय पद्घतिअर्न्तर्गतको राष्ट्रपति पदको आधारभूत मर्यादाहरूलाई संविधानमा कायम राख्न भने छुटाएको देखिन्छ । एकातर्फसंविधान निर्माताहरूले मन्त्रिपरिषद् वा अन्य संवैधानिक इकाइको सल्लाहमा कार्य गर्ने संवैधानिक राष्ट्रपतिको स्पष्ट परिकल्पना गरेको देखिन्छ भने अर्कोतर्फसंविधानकै धारा ३७-१) ले नेपालको कार्यकारिणी अधिकार मन्त्रिपरिषद्मा मात्र रहने गरेको छ । यस प्रावधानले स्पष्ट रूपमा राष्ट्रपतिसहितको कार्यकारिणी वा साविकको 'किङ इन काउन्सिल' को अवधारणालाई पन्छाएको देखिन्छ । तर यसलाई इन्कार गर्न सकिने परिस्थिति पनि देखि“दैन । संविधानमै कतिपय कार्यकारिणी अधिकार राष्ट्रपतिको हातबाट प्रयोग हुने स्पष्ट रूपमा लेखिएका कुरालाई कसरी झूटो भन्न्ो ?
त्यस्ता राष्ट्रपतिले संविधानको पालना र संरक्षण कसरी गराउलान्, जसलाई पर्दापछाडि नै भए पनि बहालवाला प्रधानमन्त्री वा मन्त्रिपरिषद्लाई सल्लाह दिने, मार्गदर्शन गर्ने र सचेत गराउने अधिकार दिइएको छैन । त्यस्तै राष्ट्रपतिले राष्ट्राध्यक्षका रूपमा प्रधानमन्त्रीलाई आवश्यक मार्गदर्शन वा सहयोग गर्न उनबाट निरन्तर मन्त्रिपरिषद्को कामकारबाही र विभिन्न समसामयिक विषयमा सरकारको ताजा दृष्टिकोणबारे सूचना एवं जानकारी प्राप्त गर्नुपर्ने हुन्छ । सोही उद्देश्यका लागि संवैधानिक अंगका प्रमुखहरू, जसले राष्ट्रपतिलाई आफ्नो वाषिर्क प्रतिवेदन बुझाउनुपर्ने हुन्छ, उनीहरूस“ग पनि राष्ट्रपतिले बराबर 'ब्रिप्रिmङ' लिनुपर्ने हुन्छ । यी मान्यताहरूले कार्यपालिका तथा संवैधानिक अंगहरूलाई अझ राष्ट्रउन्मुख हुन मद्दत गर्छन् ।
हुन त यस संविधानअर्न्तर्गत बहुमतको अहंकारबाट संसद्ले पास गरेको कुनै विधेयकलाई मानव अधिकार, सामाजिक न्याय तथा राष्ट्रिय स्वार्थको रक्षाका लागि पुनः एकपटक विचार्रार्थ संसद्मै फिर्ता पठाउन सकिने संवैधानिक राष्ट्रपतिको अधिकारलाई संविधान निर्माताहरूले चटक्कै बिर्सिए । अहिलेको संविधानअनुसार राष्ट्रपतिको अधिकार संसद्ले पास गरेको कानुनलाई प्रमाणीकरण गर्नेसम्मको मात्र छ, उनले संसद्को विधायिकी प्रक्रियालाई राष्ट्रहितमा पुनः परिचालित गर्न सक्दैनन् ।
संविधानको धारा ३८ -१) र -२) ले प्रधानमन्त्रीको नियुक्ति प्रक्रियामा राष्ट्रपतिको भूमिकालाई प्रस्ट गर्न खोजेको देखि“दैन । संसदीय व्यवस्थामा प्रधानमन्त्रीको नियुक्ति राष्ट्राध्यक्षले गर्छन् । यस्तो नियुक्ति आमनिर्वाचनपछि संसद्मा देखिने दलहरूको राजनीतिक हैसियतका आधारमा सम्बन्ध्िात दलका नेताहरूस“गै परामर्श गरी राष्ट्राध्यक्षले गर्ने गरेको देखिन्छ । सरकार बनाउने कार्यमा पहिलो प्राथमिकता त्यस्तो दललाई दिइन्छ, जसले संसद्मा स्पष्ट बहुमत ल्याएको छ । त्यस्तो बहुमत प्राप्त दल नभएको अवस्थामा राष्ट्राध्यक्षले अवस्था हेरी संयुक्त सरकार वा एकल रूपमा बहुमत नभएको तर सबभन्दा ठूलो पार्टर्ीी नेतालाई प्रधानमन्त्री नियुक्त गरी संविधानबमोजिम तोकिएको अवधिमा संसद्मा विश्वासको मत प्राप्त गर्ने निर्देशन दिन्छन् । धारा ३८-१) र -२) को पर्रि्रेक्षमा पनि यही संसदीय मान्यतालाई पन्छाएर संवैधानिक प्रयोग गर्नुपर्ने आवश्यकता देखि“दैन ।
ताजा जनमतको मूल्यांकनका आधार तथा सक्षम सरकार दिन सक्ने विश्वासमा प्रधानमन्त्रीको नियुक्ति राष्ट्रपतिकै हातबाट हुनर्ुपर्छ । धारा ३८-२) ले यो तथ्यलाई स्पष्टस“ग उल्लेख गर्न नसकेको तथा नेपालका आफ्नै वैधानिक परम्पराहरूलाई मान्यता दि“दै राष्ट्रपतिले प्रधानमन्त्रीको नियुक्ति गरी विश्वासको मत लिन संसद् पठाउन नसकेको कारण हालै प्रधानमन्त्रीको नियुक्ति प्रकरणमा राष्ट्रपतिले संसदीय मान्यता अंगीकार गर्न नसकेको तथा नियुक्ति कार्य सित्तैमा व्यवस्थापिका संसद्लाई जिम्मा लगाइदिएको टिप्पणी पनि सुनिएको छ ।
राष्ट्रपतिको भूमिकाको गैरराजनीतिक राष्ट्रिय पक्ष पनि छ । उनको निर्वाचन शून्यतामा भएको होइन । उनका पछाडि परम्परागत राजतन्त्रको लामो इतिहास छ । नेपालका राजा नेपालको वैधानिक परम्पराका बाहक मात्र थिएनन् कि नेपाली जनजीवनका धार्मिक, सांस्कृतिक तथा अन्य पक्षहरूस“ग समेत सरोकार राख्थे । निःसन्देह राष्ट्रपतिले पर्ूवराजालेेेेेेेेेेेे राष्ट्र्राध्यक्षका रूपमा निर्वाह गर्दै आएका धर्म, संस्कृति तथा सामाजिक क्षेत्रस“ग सम्बन्धित अन्य परम्परागत संलग्नतालाई पनि निरन्तरता दिन खोजेको देखिन्छ । यसलाई निरन्तरता दिनु संक्रमणकालको विवश्ाता पनि हो ।
राज्य शून्यतामा चल्न सक्दैन । तर राष्ट्र्रपतिको स्थिति कस्तो छ भने परम्पराको निर्वाह गरु“- त्यसमा आलोचना गर्नेको कमी छैन । नगरु“ संवैधानिक रिक्तता छ । नेपालका कस्ता मूल्यमान्यता तथा परम्पराहरू राजास“गै सती गएका छन् भन्ने कुरा नेपालीहरू क्रमशः बुझ्दैछन् । कतिलाई राष्ट्रपतिबाटै भए पनि आफ्नो धार्मिक, सांस्कृतिक वा जातीय गौरवको चिनो नमेटियोस् भन्ने छ । जबसम्म राजाले निर्वाह गरेका धार्मिक, सामाजिक वा परम्परागत काम-कारबाहीलाई नया“ संविधानद्वारा व्यवस्थापन गरि“दैन, राष्ट्रपतिले उपरोक्त कामलाई निरन्तरता दिइरहनु पर्ने हुन्छ । नेपाल अब हिन्दु राष्ट्र नरहेको तथा धर्मनिरपेक्ष राज्यको रूपमा राष्ट्र्राध्यक्षका सीमाहरू पनि स्थापित भइनसकेकाले यस्ता परम्परागत कामकारबाहीहरू कुन रूपमा सञ्चालन हुने भन्ने द्विविधा हटाउन उत्तिकै जरुरी छ । गणतन्त्र नेपालले अल्पसंख्यक समुदायको अपेक्षा र धर्मनिरपेक्षताको सिद्घान्तलाई कुन परिपाटीबाट अ“गाल्नेे हो- त्यसको निक्र्यौल गर्न पनि आवश्यक छ । समानताको पद्घति सबभन्दा कम विवादास्पद पद्घति हो । अतः राष्ट्रपतिद्वारा सबै धर्म, समुदाय र संस्कृत्रि्रति कम्तीमा समान स्नेह वा संरक्षणको दृष्टिकोण राख्न जरुरी हुन्छ ।
राष्ट्रपति थपनाका लागि मात्र चाहिने होेइन, उनको स्पष्ट संवैधानिक भूमिका छ । तर केमा प्रस्ट हुनर्ुपर्छ भने संवैधानिक राष्ट्रपति सामान्यतया प्रधानमन्त्री वा मन्त्रिपरिषद् अधिनस्थ राष्ट्रपति हुन्छन् । कुनै पनि विषयमा उनले प्रधानमन्त्रीस“ग छलफल गर्न वा राष्ट्राध्यक्षको रूपमा प्रधानमन्त्रीलाई आवश्यक सरसल्लाह दिन सक्छन् । त्यस्तो सल्लाह मान्नु-नमान्नु या त्यसलाई कति महत्त्व दिने भन्ने विषय अन्ततः प्रधानमन्त्रीको शासनाधिकारअर्न्तर्गत पर्छ । राष्ट्रपतिले प्रधानमन्त्रीलाई कस्तो सल्लाह दिएका थिए भन्ने विषय गोप्य मानिन्छ र त्यसलाई प्रकाशित गर्नु वा अन्य किसिमले र्सार्वजनिक जानकारीमा ल्याउनु संवैधानिक राष्ट्रपतिको गरिमाविरुद्घ हुन्छ । त्यस्तै प्रधानमन्त्रीले राष्ट्रपतिको सल्लाहका सम्बन्धमा कस्तो जवाफ दिएका थिए भन्ने विषय पनि गोप्य राख्नुपर्ने विषय हो । अन्ततः कार्यपालिकीय अधिकारको प्रयोग वा उत्तरदायित्व प्रधानमन्त्री तथा निजले बनाएको सरकारकै हुन्छ । संसदीय परिपाटीको मर्म यही हो ।
(अधिकारी संविधानविद् हुन् ।) lawyers_inc_nepal@yahoo.com
Posted on: 2008-09-07 17:42:29
Monday, September 1, 2008
Does Khasan deserve recognition?
By DR BIPIN ADHIKARI
The Kathmandu Post, August 28, 2008
http://www.kantipuronline.com/kolnews.php?&nid=158585
Nepal has been declared a federal state by the Interim Constitution. Although this does not establish ethnicity as the fundamental principle of the federal system of government that Nepal is going to adopt, there is a strong possibility that ethnicity will be taken as a major criterion in the formulation of the Nepali scheme of federalism. The opinion being floated from different established corners in the country does not give any better indication.
The issue of federalism in several developing countries has often been one for polemic rather than reasoned analysis. This is what is happening in Nepal as well. The lack of congruence between past and present in Nepal—as well as rivalry between competing contemporary federal visions and neighborhood interests—are likely to be brought into play during the conceptualization and implementation of federalism by the Constituent Assembly. It is yet to be seen whether this empowers the people who deserve empowerment, or gives way to those quarters that should not have any voice in Nepal's political process.
A key problem in this regard is the lack of seriousness on the part of the politicians and party-sponsored activists as to what they want out of federalism. So far there is complete absence of mechanisms for dealing with a multitude of conflicting federal visions competing for the same areas. Except the three political districts in the Kathmandu valley, the nation as a whole has no clue as to what is federalism; and if this is what they want as a gift from the so-called 'New Nepal.' On top of this, even if public opinion should crystallize around one particular vision, the current establishment and its loyal opposition do not have strong willingness to prevent others mounting new challenges against it. The danger is that situations like these could create further chaos and chronic administrative instability.
The issue here is the initial Maoist proposal for federalizing Nepal by creating eight states—Khasan, Tharuwan, Magart, Tamuwan, Tamang, Newa, Kirat and Madhesh—which got a further twist when the CPN-Maoist unveiled their election manifesto in early March 2008. This manifesto further proposed to restructure the unitary state into 11 autonomous federal states and two other sub-states within them keeping in mind what they described as the country's "ethnic composition, geographical contiguity, linguistic base and economic viability."
The Maoist manifesto proposed a three-tier state structure — centre, autonomous federal states and local bodies — with specific rights and responsibility among them, but essentially clinging to their strong ethnic territoriality. They have proposed Seti-Mahakali and Bheri-Karnali federal states based on their geographical appropriateness while the rest — Magarat, Tharuwan, Tamuwan, Newa:, Tamsaling, Kirat, Limbuwan, Kochila and Madhes — have been based on ethnicity. Within the Madhes autonomous state, three sub-states — Mithila, Bhojpura and Awadh — have also been proposed on linguistic basis. The Maoists have also reiterated that every autonomous state will have the right to self-determination.
In this scheme of federalism, the only ethnic territory that has not been given its proper name is Khasan. The party has not explained so far why the state of Khasan has been dropped from their original scheme, and why Seti-Mahakali and Bheri-Karnali federal states have been created in its place giving new name to this territory. The identity of Khasan (the abode of Khas people) is no less historical and real than the rest of the other Nepali communities. They are indigenous to the land; and are the principal inhabitant of their region from time immemorial. If ethnic identity is to be stimulated as a political criterion, then there is no reason why the Khas community—which is one of the major ethnic groups of the country—should be knocked down this way from Nepal's political map.
It is not necessary to refer to the written history of Nepal, and their general role in the nation building. If one is to go by Mahabharata epic—something written before the three thousand years before the birth of Jesus —note that Khasas (including Kirants) have fought war even with Krishna, Karna, Yudhistira and many rulers of the South Asian plains to safeguard the independence and sovereignty of their land.
For a Khas, whether one is a so-called Bahun or a 'sanojat,' the whole of Nepal is his or her home, and there is no ethnic loyalty to any particular piece of land inside the country. They don't say this is ours and that is yours. This is how they have lived in this land since antiquity. They live everywhere; they have equal dedication and concerns for the whole country. They do not want to see the country divided into ethnic line.
Additionally, for Khasas, Nepal is too heterogeneous for ethnic federalism to work. While devolution of power to the territories which require this for empowerment and economic development is fine and must be pursued with urgency, federalising the country along the ethnic criteria is definitely a torturous move, which might weaken this land and all Nepalis commitment for it. This does not mean that they do not have an ethnic territory; and do not mind losing it.
This author has always emphasized that Nepal needs devolution of power to the territories—ethnic or geographical—in an objective basis. Federalism is not necessarily the major issue here. Devolution of power is the answer where power needs to be transferred from a superior governmental body (such as central power) to an inferior one (such as at regional level). A genuine desire for devolution can enable different approaches to government and policy-making to develop Nepal without breaking the country into pieces, and opening up processes which could be misused in the present situation.
In the United Kingdom too, devolution became one of the key issues in the build up to the 1997 election to the House of Representatives when Labour Party promised this issue as one of its manifesto pledges and to introduce a devolved form of government for Wales, Sctoland and Northern Ireland. True to this commitment, since 1998, the constitutional structure of the United Kingdom has undergone dramatic changes.
These changes essentially involved the setting up of an elected regional assembly whose powers were carefully and clearly defined by the national government. These powers did not usually include major financial powers such as tax collection, the raising of taxes etc (though the Scottish Parliament has minor tax raising powers), the control of the armed forces or an input into foreign policy decisions. Such issues continue to be controlled by the central government.
For example, Scotland has a Parliament now elected every four years on the Additional Member System of proportional representation. The National Assembly for Wales is also elected by the Additional Member System of proportional representation. It does not have the power to make primary legislation, but enjoys extensive executive powers and may make secondary legislation.
The Belfast Agreement reached in Northern Ireland in April 1998, was approved in a referendum the following month, and also opened the avenues for devolution. One of the new institutions created following this agreement was an elected Assembly with a similar range of legislative and executive powers to the Scottish Parliament.
What has emerged from the long tidal flows of devolution—from the 1998 onwards—is a uniquely rich, open and outward looking culture and a distinctive set of values which influence British institutions. Already one can see—from the new Regional Development Agencies bringing jobs and investment to each region, to greater local powers over housing, health, skills and transport —there is a real and growing devolution of power away from Whitehall and down to individual regions and communities.
There is a pressure to do even more to move away from the old Britain weakened by decades of 'Whitehall knows best', towards a new Britain strengthened by local centers of energy, initiative, dynamism and decision-making. It is a process that goes on without creating havoc.
Sometimes people forget this is devolution; it is not a form of federalism. The essence of devolution is not to be found in a particular set of broken pieces but in the institutionalization of particular relationships among the participants of political life. Nepal is capable of doing this without hurting anybody. Should this country not plan something like this without being too introvert?
lawyers_inc_nepal@yahoo.com
Posted on: 2008-08-27 20:34:40 (Server Time)
The Kathmandu Post, August 28, 2008
http://www.kantipuronline.com/kolnews.php?&nid=158585
Nepal has been declared a federal state by the Interim Constitution. Although this does not establish ethnicity as the fundamental principle of the federal system of government that Nepal is going to adopt, there is a strong possibility that ethnicity will be taken as a major criterion in the formulation of the Nepali scheme of federalism. The opinion being floated from different established corners in the country does not give any better indication.
The issue of federalism in several developing countries has often been one for polemic rather than reasoned analysis. This is what is happening in Nepal as well. The lack of congruence between past and present in Nepal—as well as rivalry between competing contemporary federal visions and neighborhood interests—are likely to be brought into play during the conceptualization and implementation of federalism by the Constituent Assembly. It is yet to be seen whether this empowers the people who deserve empowerment, or gives way to those quarters that should not have any voice in Nepal's political process.
A key problem in this regard is the lack of seriousness on the part of the politicians and party-sponsored activists as to what they want out of federalism. So far there is complete absence of mechanisms for dealing with a multitude of conflicting federal visions competing for the same areas. Except the three political districts in the Kathmandu valley, the nation as a whole has no clue as to what is federalism; and if this is what they want as a gift from the so-called 'New Nepal.' On top of this, even if public opinion should crystallize around one particular vision, the current establishment and its loyal opposition do not have strong willingness to prevent others mounting new challenges against it. The danger is that situations like these could create further chaos and chronic administrative instability.
The issue here is the initial Maoist proposal for federalizing Nepal by creating eight states—Khasan, Tharuwan, Magart, Tamuwan, Tamang, Newa, Kirat and Madhesh—which got a further twist when the CPN-Maoist unveiled their election manifesto in early March 2008. This manifesto further proposed to restructure the unitary state into 11 autonomous federal states and two other sub-states within them keeping in mind what they described as the country's "ethnic composition, geographical contiguity, linguistic base and economic viability."
The Maoist manifesto proposed a three-tier state structure — centre, autonomous federal states and local bodies — with specific rights and responsibility among them, but essentially clinging to their strong ethnic territoriality. They have proposed Seti-Mahakali and Bheri-Karnali federal states based on their geographical appropriateness while the rest — Magarat, Tharuwan, Tamuwan, Newa:, Tamsaling, Kirat, Limbuwan, Kochila and Madhes — have been based on ethnicity. Within the Madhes autonomous state, three sub-states — Mithila, Bhojpura and Awadh — have also been proposed on linguistic basis. The Maoists have also reiterated that every autonomous state will have the right to self-determination.
In this scheme of federalism, the only ethnic territory that has not been given its proper name is Khasan. The party has not explained so far why the state of Khasan has been dropped from their original scheme, and why Seti-Mahakali and Bheri-Karnali federal states have been created in its place giving new name to this territory. The identity of Khasan (the abode of Khas people) is no less historical and real than the rest of the other Nepali communities. They are indigenous to the land; and are the principal inhabitant of their region from time immemorial. If ethnic identity is to be stimulated as a political criterion, then there is no reason why the Khas community—which is one of the major ethnic groups of the country—should be knocked down this way from Nepal's political map.
It is not necessary to refer to the written history of Nepal, and their general role in the nation building. If one is to go by Mahabharata epic—something written before the three thousand years before the birth of Jesus —note that Khasas (including Kirants) have fought war even with Krishna, Karna, Yudhistira and many rulers of the South Asian plains to safeguard the independence and sovereignty of their land.
For a Khas, whether one is a so-called Bahun or a 'sanojat,' the whole of Nepal is his or her home, and there is no ethnic loyalty to any particular piece of land inside the country. They don't say this is ours and that is yours. This is how they have lived in this land since antiquity. They live everywhere; they have equal dedication and concerns for the whole country. They do not want to see the country divided into ethnic line.
Additionally, for Khasas, Nepal is too heterogeneous for ethnic federalism to work. While devolution of power to the territories which require this for empowerment and economic development is fine and must be pursued with urgency, federalising the country along the ethnic criteria is definitely a torturous move, which might weaken this land and all Nepalis commitment for it. This does not mean that they do not have an ethnic territory; and do not mind losing it.
This author has always emphasized that Nepal needs devolution of power to the territories—ethnic or geographical—in an objective basis. Federalism is not necessarily the major issue here. Devolution of power is the answer where power needs to be transferred from a superior governmental body (such as central power) to an inferior one (such as at regional level). A genuine desire for devolution can enable different approaches to government and policy-making to develop Nepal without breaking the country into pieces, and opening up processes which could be misused in the present situation.
In the United Kingdom too, devolution became one of the key issues in the build up to the 1997 election to the House of Representatives when Labour Party promised this issue as one of its manifesto pledges and to introduce a devolved form of government for Wales, Sctoland and Northern Ireland. True to this commitment, since 1998, the constitutional structure of the United Kingdom has undergone dramatic changes.
These changes essentially involved the setting up of an elected regional assembly whose powers were carefully and clearly defined by the national government. These powers did not usually include major financial powers such as tax collection, the raising of taxes etc (though the Scottish Parliament has minor tax raising powers), the control of the armed forces or an input into foreign policy decisions. Such issues continue to be controlled by the central government.
For example, Scotland has a Parliament now elected every four years on the Additional Member System of proportional representation. The National Assembly for Wales is also elected by the Additional Member System of proportional representation. It does not have the power to make primary legislation, but enjoys extensive executive powers and may make secondary legislation.
The Belfast Agreement reached in Northern Ireland in April 1998, was approved in a referendum the following month, and also opened the avenues for devolution. One of the new institutions created following this agreement was an elected Assembly with a similar range of legislative and executive powers to the Scottish Parliament.
What has emerged from the long tidal flows of devolution—from the 1998 onwards—is a uniquely rich, open and outward looking culture and a distinctive set of values which influence British institutions. Already one can see—from the new Regional Development Agencies bringing jobs and investment to each region, to greater local powers over housing, health, skills and transport —there is a real and growing devolution of power away from Whitehall and down to individual regions and communities.
There is a pressure to do even more to move away from the old Britain weakened by decades of 'Whitehall knows best', towards a new Britain strengthened by local centers of energy, initiative, dynamism and decision-making. It is a process that goes on without creating havoc.
Sometimes people forget this is devolution; it is not a form of federalism. The essence of devolution is not to be found in a particular set of broken pieces but in the institutionalization of particular relationships among the participants of political life. Nepal is capable of doing this without hurting anybody. Should this country not plan something like this without being too introvert?
lawyers_inc_nepal@yahoo.com
Posted on: 2008-08-27 20:34:40 (Server Time)
Sunday, May 25, 2008
Issues surrounding abolition of monarchy
By BIPIN ADHIKARI
http://www.kantipuronline.com/kolnews.php?&nid=147732
The Kathmandu Post May 22, 2008
With less than a week left for the apparent end of monarchy, the CPN (Maoist) leaders have intensified their demand that King Gyanendra leave the palace well before May 28. This is the fateful date set by Prime Minister Girija Prasad Koirala for the first meeting of the newly elected Constituent Assembly, where he is going to table a motion to abolish monarchy, and lay down the foundation of the 'New Nepal.'
In the first meeting of the Constituent Assembly, Prime Minister Koirala is supposed to invoke Article 159 of the Interim Constitution, which gives him power to table such a motion, and the members of the Assembly are to vote on it according to Article 75. The fathers of the Interim Constitution, who believed that revolutions know no bounds of law, probably thought that the Assembly does not need any governing principles as to how the decision of the House is to be made and implemented.
As such, the existing interim parliament, the unelected members of which are still drawing their remuneration from the national coffer, did not think of the Abolition of Monarchy Act to meet the requirement of the due process. So the decision to be made politically is also likely to be implemented in a most controversial way.
While the Assembly process is yet to begin, the Maoist leaders have already started threatening the king and his family to leave the Narayanhiti palace as fast as possible. They have consistently indicated the possibility of the use of force to get the king out after May 28. Prime Minister Koirala too is on record several times for having said that the king should abdicate, and make the transition smooth. His remarks, although not as bitter as that of the Maoist leaders, also had contents of a veiled threat. While it is not clear why the Maoists want the king to leave the palace, at least a day before, or what political benefits will accrue to them if the king really gratifies them by accepting the request, the issues that involve in this context go beyond. The concern here is emphatically legal.
To a lawyer, it is not understandable how somebody can execute a decree without a court first awarding it. For example, whether a decree is for payment of money or for the recovery of any land or property, it must first be obtained from a law court. Such a decree gives necessary entitlement to the decree-holder to execute the decree against the judgment debtors. Then the execution may be effected by delivery of property, or by attachment and sale, or arrest of the defaulter, or in such other manner as the nature of the relief granted may require. This is what the civil law of Nepal states. Unless it does not apply to King Gyanendra, there is no reason why the rule of law should be parted with like this. Hence, the May 28 process must first be complied with before asking the King to leave the palace.
Again, Narayanhiti is not an illegal possession of the monarch. He is not its illegal occupant. He has every right to stay there until the law of the land is amended and he is deprived of his possession based on a valid piece of law. The legal tradition of this country builds around the principle that possession is 9/10ths of the law — or that one who has physical control of his property is clearly at an advantage should his rightful ownership of the property ever be subject to challenge. Even when a tiny public company is liquidated, it takes months to settle all claims. It is not convincing when the king as an ordinary individual is deprived of this process. It is better for the 'new regime', therefore, to wait for the May 28 process, and follow the legitimate course afterwards so that when they are at low ebbs, the legal system is able to protect their legitimate rights too.
King Charles the First, known as a noted English autocrat, was put on trial in January 1649 and executed following disagreements between him and his rump Parliament controlled by the army. Both sides claimed that they stood for the rule of law. The rump Parliament, with the backing of the army, established a High Court of Justice, where he was charged with high treason 'against the realm of England'.
The only people allowed into Parliament were those who Oliver Cromwell (Prachanda's rightist counterpart by analogy) thought supported the trial of the king. In fact only 68 out of 135 judges turned up for the trial. The public was not allowed into the hall until after the charge had been read out. The king refused to plead guilty, saying that he did not recognize the legality of the High Court in the first place. He said it was established by a Commons purged of dissent, which had never acted as a judicature, and without the House of Lords.
On the scaffold, the man who was to execute Charles refused to do it. So did others. Very quickly, another man and his assistant were found to do the job. His last speech to the crowd was "I have delivered to my conscience; I pray (to) God you do take those courses that are best for the good of the kingdom and (to) your own salvation."
Time changed even if some people were not looking forward to it. When Charles II returned to become King of England in 1660, following a long period of instability, those men who had signed his father's death warrant (and were still alive) were tried as regicides (the murderer of a king) and executed. Everyone associated with the execution except the executioners of Charles was put on trial. These executioners were able to escape as no-one knew who they were. After a struggle for about twenty years between royalists and republicans, monarchy was restored, and the English people again became subjects of the head of the Scottish house of Stuart. The main reason behind it was the unfair trial of Charles I.
In a similar case in Nepal, where it is not an army-supported trial which is involved in the abolition of monarchy, the Assembly should indeed enable the controversial monarch to contest the motion against him in the House, and present his version of the story before the actual voting under Article 75 of the Constitution. It will be too youthful to think that this can any way change the mood of the Assembly, or of the revolution which is making advances.
Nevertheless, the king of Nepal, who is being treated as the principal defendant should have the opportunity to speak to the people who must know what the other side of the story is. In democracy it matters; and it matters in the most powerful sense. The king is not being toppled, he is being laid off. If this is the truth, then the process requires that he must be allowed an adequate opportunity to present his case. Additionally, even if the faulty Constitution is silent on whether the sovereign representatives of the people have the right to caste their vote of conscience on the issue, they should be afforded this opportunity without expressing or implying whips from their parliamentary parties.
Eventually, those who are said to be making history should make it on the strength of self-respect and certain universal values. These values — justice, equality, the rule of law, to mention the most basic ones — need to be protected, no matter who gains from it. It might delay the process a little, but it can surely give a clear outlet to the problem and a firm footing to the democrats.
lawyers_inc_nepal@yahoo.com
http://www.kantipuronline.com/kolnews.php?&nid=147732
The Kathmandu Post May 22, 2008
With less than a week left for the apparent end of monarchy, the CPN (Maoist) leaders have intensified their demand that King Gyanendra leave the palace well before May 28. This is the fateful date set by Prime Minister Girija Prasad Koirala for the first meeting of the newly elected Constituent Assembly, where he is going to table a motion to abolish monarchy, and lay down the foundation of the 'New Nepal.'
In the first meeting of the Constituent Assembly, Prime Minister Koirala is supposed to invoke Article 159 of the Interim Constitution, which gives him power to table such a motion, and the members of the Assembly are to vote on it according to Article 75. The fathers of the Interim Constitution, who believed that revolutions know no bounds of law, probably thought that the Assembly does not need any governing principles as to how the decision of the House is to be made and implemented.
As such, the existing interim parliament, the unelected members of which are still drawing their remuneration from the national coffer, did not think of the Abolition of Monarchy Act to meet the requirement of the due process. So the decision to be made politically is also likely to be implemented in a most controversial way.
While the Assembly process is yet to begin, the Maoist leaders have already started threatening the king and his family to leave the Narayanhiti palace as fast as possible. They have consistently indicated the possibility of the use of force to get the king out after May 28. Prime Minister Koirala too is on record several times for having said that the king should abdicate, and make the transition smooth. His remarks, although not as bitter as that of the Maoist leaders, also had contents of a veiled threat. While it is not clear why the Maoists want the king to leave the palace, at least a day before, or what political benefits will accrue to them if the king really gratifies them by accepting the request, the issues that involve in this context go beyond. The concern here is emphatically legal.
To a lawyer, it is not understandable how somebody can execute a decree without a court first awarding it. For example, whether a decree is for payment of money or for the recovery of any land or property, it must first be obtained from a law court. Such a decree gives necessary entitlement to the decree-holder to execute the decree against the judgment debtors. Then the execution may be effected by delivery of property, or by attachment and sale, or arrest of the defaulter, or in such other manner as the nature of the relief granted may require. This is what the civil law of Nepal states. Unless it does not apply to King Gyanendra, there is no reason why the rule of law should be parted with like this. Hence, the May 28 process must first be complied with before asking the King to leave the palace.
Again, Narayanhiti is not an illegal possession of the monarch. He is not its illegal occupant. He has every right to stay there until the law of the land is amended and he is deprived of his possession based on a valid piece of law. The legal tradition of this country builds around the principle that possession is 9/10ths of the law — or that one who has physical control of his property is clearly at an advantage should his rightful ownership of the property ever be subject to challenge. Even when a tiny public company is liquidated, it takes months to settle all claims. It is not convincing when the king as an ordinary individual is deprived of this process. It is better for the 'new regime', therefore, to wait for the May 28 process, and follow the legitimate course afterwards so that when they are at low ebbs, the legal system is able to protect their legitimate rights too.
King Charles the First, known as a noted English autocrat, was put on trial in January 1649 and executed following disagreements between him and his rump Parliament controlled by the army. Both sides claimed that they stood for the rule of law. The rump Parliament, with the backing of the army, established a High Court of Justice, where he was charged with high treason 'against the realm of England'.
The only people allowed into Parliament were those who Oliver Cromwell (Prachanda's rightist counterpart by analogy) thought supported the trial of the king. In fact only 68 out of 135 judges turned up for the trial. The public was not allowed into the hall until after the charge had been read out. The king refused to plead guilty, saying that he did not recognize the legality of the High Court in the first place. He said it was established by a Commons purged of dissent, which had never acted as a judicature, and without the House of Lords.
On the scaffold, the man who was to execute Charles refused to do it. So did others. Very quickly, another man and his assistant were found to do the job. His last speech to the crowd was "I have delivered to my conscience; I pray (to) God you do take those courses that are best for the good of the kingdom and (to) your own salvation."
Time changed even if some people were not looking forward to it. When Charles II returned to become King of England in 1660, following a long period of instability, those men who had signed his father's death warrant (and were still alive) were tried as regicides (the murderer of a king) and executed. Everyone associated with the execution except the executioners of Charles was put on trial. These executioners were able to escape as no-one knew who they were. After a struggle for about twenty years between royalists and republicans, monarchy was restored, and the English people again became subjects of the head of the Scottish house of Stuart. The main reason behind it was the unfair trial of Charles I.
In a similar case in Nepal, where it is not an army-supported trial which is involved in the abolition of monarchy, the Assembly should indeed enable the controversial monarch to contest the motion against him in the House, and present his version of the story before the actual voting under Article 75 of the Constitution. It will be too youthful to think that this can any way change the mood of the Assembly, or of the revolution which is making advances.
Nevertheless, the king of Nepal, who is being treated as the principal defendant should have the opportunity to speak to the people who must know what the other side of the story is. In democracy it matters; and it matters in the most powerful sense. The king is not being toppled, he is being laid off. If this is the truth, then the process requires that he must be allowed an adequate opportunity to present his case. Additionally, even if the faulty Constitution is silent on whether the sovereign representatives of the people have the right to caste their vote of conscience on the issue, they should be afforded this opportunity without expressing or implying whips from their parliamentary parties.
Eventually, those who are said to be making history should make it on the strength of self-respect and certain universal values. These values — justice, equality, the rule of law, to mention the most basic ones — need to be protected, no matter who gains from it. It might delay the process a little, but it can surely give a clear outlet to the problem and a firm footing to the democrats.
lawyers_inc_nepal@yahoo.com
Monday, May 12, 2008
Constituent Assembly to convene on May 28 (7:45pm)
http://www.nepalnews.com.np/archive/2008/may/may12/news13.php
Prime Minister Girija Prasad Koirala has called the first sitting of the Constituent Assembly (CA) on May 28 (11:00 am) at Birendra International Convention Centre (BICC), Baneshwor.
The Prime Minister, who also acts as the head of the state, announced the date for the CA meeting following consultations with the leaderships of political parties represented in the Assembly.
Last week, a meeting of the six parties of the seven-party alliance (SPA) had given him the responsibility to fix the date for CA meeting.
All major parties have already announced that the first CA meeting will abolish monarchy and declare Nepal a republican state. nepalnews.com mk May 12 08
Prime Minister Girija Prasad Koirala has called the first sitting of the Constituent Assembly (CA) on May 28 (11:00 am) at Birendra International Convention Centre (BICC), Baneshwor.
The Prime Minister, who also acts as the head of the state, announced the date for the CA meeting following consultations with the leaderships of political parties represented in the Assembly.
Last week, a meeting of the six parties of the seven-party alliance (SPA) had given him the responsibility to fix the date for CA meeting.
All major parties have already announced that the first CA meeting will abolish monarchy and declare Nepal a republican state. nepalnews.com mk May 12 08
Wednesday, May 7, 2008
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)
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)
Tuesday, May 6, 2008
संघीय शासनको सान्दर्भिकता
डा विपिन अधिकारी
http://www.kantipuronline.com/kolnepalinews.php?nid=141810The 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 -
http://www.kantipuronline.com/kolnepalinews.php?nid=141810The 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 -
Sunday, May 4, 2008
Inexplicable Results - Constituent Assembly Elections
Inexplicable Results
http://www.nepalnews.com.np/contents/2008/englishweekly/spotlight/apr/apr18/coverstory.php
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.
http://www.nepalnews.com.np/contents/2008/englishweekly/spotlight/apr/apr18/coverstory.php
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.
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