Nepali Times
Nation
From ambiguity to trust


ALOK K BOHARA


At least there is one thing everyone seems to agree on: the current political crisis requires serious changes in our constitution.

It is in the best interest of the country that the new constitution be drafted by an all-party negotiating team, and upon its completion, be brought in front of the people for a referendum. During the negotiation, issues dealing with public policies must be separated from the constitutional fundamentals. Whether we elect a Constituent Assembly or amend the existing constitution, the following seven areas must be the guiding principles.

1. SOVEREIGNTY OF PARLIAMENT

The Maoists and the political parties have raised the contentious issue of who controls the army. Ignoring this point will not make it go away. In other monarchies like Spain, the parliament has supreme authority over the armed forces. In the Netherlands, the reigning monarch acts through royal decree as defined by an act of parliament. Both cases spell out the procedures very clearly. I n Nepal the parliament does not have any authority to declare an emergency, and there is heavy reliance on a three-person Defence Council. A new or revised constitution must clarify this ambiguity. It is crucial that a more democratic decision-making process in parliament and perhaps the upper house must replace the Defence Council. The current Articles 118 and 115 can be collapsed to produce the following amendments:

Provisions Regarding the Royal Nepali Army, emergency, alarm and war

1. If a grave crisis arises in regard to the sovereignty or integrity of the Kingdom of Nepal or the security of any part thereof, whether by war, external aggression, armed rebellion or extreme economic disarray, His Majesty may, as defined by Act of Parliament, declare or order a State of Emergency with respect to the whole of the Kingdom of Nepal or any specified part thereof.

2. Immediately after the declaration of a State of Emergency and whenever it considers it necessary, until such time as the State of Emergency is terminated by Royal Decree, the Parliament shall decide the duration of the State of Emergency. The two Chambers of the Parliament shall consider and decide upon the matter in joint session.

3. A declaration that the Kingdom is in a state of war shall not be made without the prior approval of the Parliament.

4. During the dissolution of the House of Representatives, the National Assembly shall exercise the powers of the House of Representatives for the purposes of clause (1), (2) and (3).

5. The State of Alarm shall be declared by the Government, by means of a Decree agreed upon by the Council of Ministers, for a maximum period of fifteen days informing the House of Representatives, which has convened immediately for that purpose and without whose authorisation the period cannot be extended. The House of Representatives shall not extend the period beyond the additional maximum limit of thirty days.

6. The authorisation and proclamation of a State of Emergency or Alarm must expressly determine its purposes, the territorial area to which it is extended and its duration.

7. Such approval shall not be required in cases where consultation with Parliament proves to be impossible as a consequence of the actual existence of a state of war.

8. The democratically elected people's representatives and His Majesty shall have supreme authority over the armed forces.

9. His Majesty, as a supreme Commander-in-Chief, shall operate and use the Royal Nepali Army on the recommendation as defined by Act of Parliament.

10. The Royal Nepali Army shall maintain its professionalism according to its own organisational rules and code of conduct.

11. The Army Chief of Staff and the Commander-in-Chief shall have complete loyalty to the Constitution.

12. His Majesty shall appoint the Commander-in-Chief of the Royal Nepali Army on the recommendation of the Prime Minister.

These suggestions could provide the middle ground to the demands of the Maoists and the parties. Further, clause (6) provides the government with some power to act quickly in case of a grave situation.

The growing rift between the monarchy and the parliamentary forces can directly be attributed to the use or misuse of Article 127. There are two problems with this article: it doesn\'t clarify what constitutes \'an obstacle\', and it doesn't provide an alternative in case of a dissolved house. Revised, Article 127 may look
as follows:

Power to Remove Difficulties

1. If any difficulty arises in connection with the implementation of this Constitution, His Majesty may, as defined by
Act of Parliament, issue necessary Orders to remove such difficulty.

2. During a dissolution of the House of Representatives, the National Assembly shall exercise the powers of the House of Representatives for the purposes of clause (1).

3. The Proclamation of Order, as defined by Act of Parliament, pertaining to (1) or (2) must expressly determine its purposes.

Such provisions will broaden the checks and balances by involving the Upper House in decision-making and giving it a watchdog role. King Gyanendra used Article 127 to fire an elected prime minister for "incompetence", but contravened Article 35.2 which prohibits him from doing the very same thing. And instead of using Article 128 to form a new council of ministers from the members of the major parties, the king appointed a leader from a smaller party. Major parties label his move as unconstitutional, but ironically, the Supreme Court cannot discuss the issue, because Article 31 does not allow any petition against the royal move. Article 35 therefore vests executive powers both in the king and the council of ministers, raising further questions about the functionality of the interim government. The carefully worded changes in Article 127 make Articles 128, 31, and 35 less alarming.

2. POLITICAL ECONOMIC DEVOLUTION

The grassroots must be given decision-making powers through a system of decentralised regional governments. Further, a clear division of task among the three layers (village, region and centre) of governments must be spelled out in the constitution.

Centre: Defence, custom and import duties, postal, regional and international matters, citizenship, science and technology, highways, big dams, waterways, income taxes, VAT, etc

Regional: Health, small and medium hydropower and distribution, autonomous universities, feeder roads, forest resources, tourism, etc.

Village: Health post, elementary schools, property taxes, business registration fees, sanitation, water supplies, local tourism etc.

3. PROPORTIONAL REPRESENTATION

The current Westminster type of winner-take-all system, also known as 'first-past-the-post', should be replaced by
mixed proportional representation (PR). This method allows a higher level of representation from the smaller parties and provides more voices for the minorities. Most democracies around the world use a certain form of the PR system. In simple terms, the 50/50 mixed PR system elects half of its representatives based on the current single-constituency winner-take-all method, and the other half are elected based on the percentage of the popular votes that each party receives nationally or regionally.

But, as practised widely around the world, such a proportional allocation system should be based on popular party votes rather than ethnic, gender, or religious segregation and quotas, although a reasonable compromise could be to assign some gender and ethnic based proportional allocation in the Upper House. This can be achieved by requiring the parties to set aside 10-20 percent from their proportionally allocated seats in the Upper House.

4. STABILITY AND ACCOUNTABILITY

A direct election of the prime minister could reduce future conflict of interest between the head of the government and post-seeking legislators. The sitting prime minister has the prerogative to dissolve parliament by recommending his intent to the king, but it requires him to call for a new election within a given period. But when you have a leadership devoid of political culture, such powers have often been misused for political manipulation. The constitution could be amended along the lines of the Norwegian approach prohibiting parliamentary dissolution during its regular election cycle. In South Africa, dissolution of parliament is not allowed for three years after an election. Alternatively, instituting a system of 'constructive vote of no confidence' in removing a prime minister, as in Germany, can generate stability. Our own clause in Article 59 governing this provision could read as follows:

Constructive vote of no confidence
Parliament can express its lack of confidence in the Prime Minister only by electing a successor with the majority of its members and by requesting His Majesty to dismiss the sitting Prime Minister. His Majesty shall comply with the request and appoint the person elected. Seven days must elapse between the motion and the election.

A term limit on the premiership, of two terms, could also serve to open up the leadership opportunity for younger generation. Allowing or requiring the prime minister to form a cabinet using experts outside the legislative bodies may increase accountability, reduce rent-seeking behaviour and separate the functionality of the executive and legislative branches.

5. FAIRNESS AND SOCIAL JUSTICE

Ethnic diversity in the country should be a source of tremendous pride and identity and we should all celebrate it. But, using that to generate discriminatory practices must be declared illegal in the strongest term in our constitution. The gender discrimination in property rights and work force employment should not be tolerated and enforced by a special commission.

6. GUARANTEE OF LIBERTY

Elections alone do not guarantee democracy. In addition to establishing strong institutions with the rule of law and the separation of power, a working liberal democracy and its constitution must also guarantee the basic human rights, including the protection of private property, free speech, and religious tolerance. Proper land reform can address the issue of poverty, economic freedom and a free market are essential in spurring economic growth and creating jobs. A strong democracy cannot flourish without protecting property rights of individuals and economic incentives.

7. CONSTITUTIONAL AMENDMENT

The amendment clause will be a thorny issue, especially under the current environment of mistrust among the
three political forces. To safeguard any potential foul play and to avoid conflict of interest, the following mechanism may be implemented:

1. With a vote of at least two thirds in each Houses, an Act of Parliament shall be passed stating that an amendment to the Constitution in the form proposed shall be considered. The Act of Parliament has an option of requiring a referendum.

2. The two Houses shall be dissolved after the Act referred to in (1) has been published.

3. The newly elected Houses shall consider the Bill and it shall be passed only if at least two thirds of the votes in each Houses cast are in favour.

4. The bill requiring a referendum in (1) must have a simple majority of the votes cast in the referendum before being considered for a vote by the newly elected houses in (3).

What is urgently required is for the major political parties, the Maoists, and the king to join forces for a larger public good. They need to work together to shape a new constitution that espouses free market and property rights not a command economy, a strong judiciary not the people's courts, a professional army under civilian control that respects human rights not an errant militia, social justice not social engineering, a sovereign nation not a subservient satellite, a multiparty system not a one party autocracy and a constitutional monarch not an absolute one.

Alok K Bohara, PhD, is a professor of economics at the University of New Mexico, US. bohara@umn.edu


LATEST ISSUE
638
(11 JAN 2013 - 17 JAN 2013)


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