Constitution Making Process
Constitution making committees
In order to make the process of constitution building systematic, the Constitution Assembly (CA) Rules 2008 created provisions to form various committees in the CA, including one constitutional committee, 10 thematic committees, and three procedural committees (CA, 2008). This committee worked as state-of-art practice in organizing discourse of constitutional agendas and making the draft for constitutional writing in new federal setting. Each thematic committee had its own terms of reference, and was assigned to prepare concept papers of the concerned subjects, prepare preliminary constitutional drafts under its jurisdiction, and finalize the reports based on the concept papers and preliminary drafts. The committees prepared the concept papers and preliminary drafts on the basis of opinions of common people of all districts as well as Nepalese living abroad, suggestions from concerned subject experts, constitutional experts, legal experts, political scientists, human rights activists, civil society leaders, professional organizations, national and international organizations, and other stakeholders (International IDEA, 2015).
The reports prepared on the basis of the concept papers and preliminary drafts were tabled in the Assembly between 23 May 2009 and 26 January 2010 (Legislative-Parliament Secretariat 2013). As per the provision stated in CA Rules 2008, the constituent assembly endorsed the reports submitted by all the committees and forwarded them to Constitutional Committee to integrate all reports to the draft of the constitution.
3.1.1 Constitutional Committee:
After the submission of the preliminary draft reports of the Thematic committees referred to the concept paper on the subjects within their respective working areas, this committee was responsible to prepare a draft of the Constitution on the basis of report received from such Committees, suggestions and directives given by the Assembly upon having discussion on those reports, and to introduce a draft to the Constituent Assembly (international IDEA, 2015). Under this committee 63 members put an effort to draft the constitution. Issues related to arrangements of constitution, the fundamental rights, description of the national flags, national song, coat of arms of Nepal and other 31 agendas were stated by this committee to Constitutional Assembly before staging the draft (CA,2008).
Committee on determination of structure of the constitutional bodies
To identify the need of new constitutional bodies, strengthen the existing ones and set the constitutional rights and responsibilities for its functioning was the main task of this committee. This committee identified nine commissions to recommend to constitutional assembly. Commission for Investigation on Abuse of Authority (CIAA), Audit Commission, Public Service Commission, Election Commission, Human Rights Commission, Women Commission, Dalit Commission, Adibasi / Janjati (Indigenous/ Ethnic Communities) Commission, Commission for the Protection of the Rights of People with Disabilities, Minority and Marginalized Groups and People of Backward Regions, Madhesi Commission, Muslim Commission are the constitutional bodies in Nepal. Among them 5 commissions were new ones introduce to protect the rights of people. Considering the restructuring on governance system all the commissions opted to have its regional offices in all the provinces. Commissions are obliged to submit reports to the President and that goes to Prime minister and to the legislature parliament (CA, 2009,a).
Committee to Determination of Bases of Cultural and Social Solidarity
The main responsibility of this committee was to find out functional government language in the federal units of various levels. Issues related to preservation of language and cultures are of main area of this committee. It proposed that each community should have the right to have education on mother tongue. Uplifting the underprivileged community with the provision of equal rights was its major agendas and it also recommended establishing Dalit Commission(CA, 2008).
Committee on Determination of Forms of Governance of the State
This committee was responsible to define nature and outlines of system of Governance election system, format of executive organ at various Levels, division of executive powers at various levels, inter-relationship between governments at various levels, formation and functioning of government services and bases of good governance. Formation of the federal and provincial executive powers, election of the president and vice-president in the country, qualification for the position, formation of the council of ministers, institutional mechanism to deal with federal, provincial and local issues was identified and stated by this committee (CA,2009c).
Under this committee federal executive power is opted by Council of Ministers where President appoints Prime Minister of the parliamentary party leader of the party which has the highest number of members in the House of Representatives. Likewise in province level State Executive power can be performed by Chief of State who is appoint by President and State Council of Ministers (Chief Minister and Ministers) and in local level executive power is deputed to village executive who are elected Chairperson and Vice-chairperson or the Municipal Executive elected Mayor and Deputy Mayor (CA,2009c).
Committee on Determination of the Form of the Legislative Body
This committee worked on the issues of structure and methods of formation of the legislature in the various federal units, inter-relationship among the legislatures of various levels of federal units, legislative procedures and financial management procedures. Functioning of the federal and provincial legislature like electing speaker in the house of the representatives, passing of the bill, setting quorum were stated in the report prepared by this committee (CA,2009d).
Committee on Fundamental Rights and Directive Principles
This committee worked on the identification of fundamental rights, grounds of restrictions on fundamental rights, provisions relating to implementation of fundamental rights, directive principles and policies of the state, provision relating to special protection of rights of all minority communities including women, children, youths, laborers, peasants, madhesi, indigenous/ tribal communities, dalit, backward regions, incapacitated persons, Muslims, provisions relating to citizenship. In present constitution, 31 fundamental rights guaranteed by the constitution were recommended by this committee (CA, 2009k).
Committee on Judicial System
This committee worked on the areas of format of the judicial structure, tiers, forms and jurisdiction of judiciary, appointment, dismissal, other terms and conditions of service, powers, duties and responsibilities of the judges, and additional issues relating thereto Constitutional status, powers and duties of Attorney General and recommended to the constituent assembly. Supreme court in federal level, high courts in provincial level and district court are functioning in local level (CA,2009j).
Committee for Preserving the National Interests
The major area of subject of this committee was to mark the identification and definition of national interests of Nepal, measures for constitutional protection of sovereignty, integrity and national unity, management of international boundaries of Nepal, preservation of national heritage, international relations, international treaties, national security, duties of the Nepal Army and its operation (CA,2009i).
Committee on Natural Resources, Economic Rights and Revenue Allocation
On the light of restructuring of the state this committee worked on finding the modality that can work efficiently of revenue generation in all three levels of governance. They identified division of subject-matters of financial sources, measuring criteria for the division of income sources and financial relationships between governments at various levels and recommended to the CA. Allocation of natural resources, measurement to allocate economic resources, financial equalization among the federal and provincial government, establishment and run the mechanisms such as Common Financial Fund are major issues they worked on for constitutional input (CA, 2009f).
Committee for Restructuring of the State and Distribution of State Power
The issue of state restructuring was the most debated during constitution making and it is continued even after the promulgation of the constitution. This committee worked on the structure in the federal democratic republican form of the state, the principles and grounds for determining the areas of the federal units, delimiting the boundaries and naming of each of the federal units, division of legislative, executive and judicial powers among the governments in various levels of federal units, determining the contents of working areas of federal units of various levels and the common subjects, determination of interrelationship of legislative, executive and judicial powers among federal units and mechanism for adjudication of disputes that may arise between the federal units (CA,2009e).
Committee for Protection of the Fundamental Rights of Minorities and Marginalized Communities
This committee worked on the definition of minority and marginalized communities, identification of down trodden, isolated or excluded groups including tribal communities, provisions for the protection of minority and marginalized communities and measures for inclusion in the system of state affairs and recommended to CA (CA,2008).
Under this, three committees Committee on civic relation, Committee on collection and coordination of public opinions and Committee on Capacity Development and Resource Management performed their task. These committees mainly worked on communicating constitutional agendas to the general public for the collection of their opinion that to bring validity to the new constitution. For this they worked on organizing open public debates on issues of new constitution and incorporated the voice of the general people to make the constitution more participatory in its final draft (CA, 2008).
Proposal of the Committee formed by Constituent Assembly
The committee for the Restructuring of the State and Distribution of State Powers initially proposed 14 provinces. Eight of the provinces were proposed on the basis of ethnic identity; two provinces were identified along ethnic-linguistic lines; two other provinces were proposed on the basis of historical contiguity, and remaining two on the basis of geographical region (Ghimire, 2012). These provinces were Limbhuwan, Kirat, Sherpa, Mithila-Bhojpura-Koch Madhesh, Sunkoshi, Tamsaling, Newa, Narayani, Tamuwan, Magarat, Lumbini-Awadh-Tharuwan, Jadan, Karnali and Khaptad.
Along with three tiers of government (federal, province and local), there was also provision of autonomous regions, protected areas and special areas. Autonomous regions are areas with the concentration, dominance or plurality of a particular ethnic, community or language group(s). Protected areas are areas delineated for the protection and development of minority ethnic groups or endangered and marginalised ethnic groups. Special areas are geographical areas that may have population groups that are lagging or disadvantaged in terms of economic and social conditions or needing special attention for the development (Mahubang, 2014). A total of 22 autonomous regions was proposed on a preliminary basis. Special rights were conferred with autonomous region which could have its own 'police' and autonomous election commission to elect the governing authority and implement laws that autonomous region is constitutionally entitled to control much similar to local bodies. Further, a condition of political prior rights (Khanal, 2017) has been proposed in the case of provinces formed on the basis of ethnic or community plurality requiring nomination of provinces head from majority ethnic groups for regular first two terms.
The Constituent Assembly Committee on Natural Resources Committee proposed that the distribution of economic rights among the different levels of governments shall be as set forth in List 1 . The provincial government and the local governments may enact law on any matter related to the economic rights of citizens. Province and local governments were assured rights related to economic rights. It was also spelt out that no federal laws shall be enacted to have a negative impact on the economic rights and financial procedures of the provincial and local governments .
(Source: Two Steps Forward One step backward Nepal’s Peace Process, Accord Series 2017)
When issue regarding the number of provinces could not generate agreement, a High Level State Restructuring Commission (HLSRC) was formed by an executive order in November 2011 with representation from political party leaders. The nine-member commission reflected the differing and entrenched positions but could not arrive at a consensus. The HLSRC produced two separate reports reflecting both the majority and minority views and submitted to the Government. The majority 6-member report recommended federating the country into 11 provinces, including a non-territorial province for the Dalits. The provinces were Limbhuwan, Kirat, Mithila-Bhojpura, Tamsaling, Newa, Narayani, Tamuwan, Magarat, Awadh-Tharuwan and Khapta-Karnali.
The minority report recommended only six provinces. The reports were presented to the Constituent Assembly and briefly discussed before they were sent to the Constitution Committee (Khanal, 2017).
The Article 9 of the report of the Committee for preserving National Interests proposes that the centre shall have the authority to conduct Nepal's foreign relations (Acharya M. L., 2014). Similarly, the appointment and acceptance of the ambassadors, power to enter and conclude treaties, national defense council are proposed for the central government, but it has also been accepted provinces may enter into contractual agreements on economic and industry-related issues subject to permission by the federal government.
The Constituent Assembly Committee on Forms of Government made three different proposals for a presidential, a parliamentary and a presidential system, with a different form for the centre than for the provinces. Interestingly, the parliamentary model was proposed unanimously for the provinces, which is, however, entirely different from the local governance structure, which was also proposed unanimously .