Opposition Parties Express Skepticism Over Constitution Amendment Task Force

Opposition parties have expressed skepticism about the task force formed by the government for constitution amendment. The task force, formed under the convenership of the Prime Minister's Political Advisor Asim Shah, is continuing its work of seeking suggestions and consultations from various political parties, legal experts, former Attorneys General, media house editors, and various stakeholders including civil society leaders.

Is the task force only collecting suggestions for constitution amendment, or is it proceeding with prior preparation? Ganesh Pandey has interviewed Mohanlal Acharya, a member of the task force from the Rastriya Swatantra Party, on this very subject. Here is the edited excerpt of the conversation with Acharya:

• You have prioritized the issue of constitution amendment in the 100-point agenda for governance reform immediately after the formation of the government. This issue was also prioritized in the pre-election manifesto. What are the problems that have emerged in the implementation of the constitution in the last 10 years?

During this period, studies have been conducted at the party level, and based on those studies, some points were included in the manifesto. The issue of constitution amendment is also included in the government's 100-point agenda. Some time ago, UML and Congress also formed a coalition government with constitution amendment as the main agenda. However, the work of constitution amendment did not move forward at that time. This is a matter that everyone has realized.

Based on the needs, context, and equations of that time, the Constituent Assembly took about 7-8 years to draft the constitution. Some problems have emerged as the work progressed. Furthermore, Article 265 of the constitution has provisions regarding the review of various commissions. There are seven commissions. The seven commissions, including the National Women Commission, National Dalit Commission, National Inclusion Commission, Adivasi Janajati, Madhesi, Muslim, Tharu Commissions, mentioned in Part 27 of the constitution, will be reviewed by the Federal Parliament after 10 years, as per the constitutional provision. That is one aspect.

In the course of work, there are some issues where exclusive rights and shared rights have clashed or overlapped. There are also some gaps. In terms of jurisdiction, how much will be federal? How much will be provincial? How much will be local?

Were those commissions effective or not? What has been the impact of their work during this period? Was it necessary or not? Has there been an overlap? Would it have been more effective if there was only one commission? Discussions are ongoing on these matters, which are subjects mandated by the constitution.

The second issue, specifically what we call the 'list of competencies' in the constitution. The three schedules of the constitution fall under the exclusive rights of the federal, provincial, and local levels. Two schedules are in the concurrent list of federal and provincial, and one is in the concurrent list of federal, provincial, and local levels. In the course of work, there are some issues where exclusive rights and shared rights have clashed or overlapped. There are also some gaps. In terms of jurisdiction, how much will be federal? How much will be provincial? How much will be local? If these issues had been discussed and resolved in depth, perhaps it would not have been so difficult. In the course of work, there are currently some difficult and overlapping issues concerning the federal, provincial, and local levels.

Let me give an example: basic and secondary education is under the exclusive jurisdiction of the local level, while education is listed in the concurrent list. Education encompasses everything, including basic and secondary education, and university education. There are some such ambiguous issues. In the case of forests, some matters are assigned to the local level, some to the province, and some to the federal government. This makes it difficult to work. The agricultural sector also faces similar issues, and there are some unclear matters in the health sector as well. Therefore, to make it easier to work in the future and to facilitate all three tiers, some matters need to be clarified or simplified. The issues that have clashed or overlapped need to be removed and simplified, and the jurisdiction of each should be clarified. Both the provincial and local levels have experienced difficulties in their work. These are very important issues that can be shared.

Rastriya Swatantra Party is not in favor of abolishing the provinces. Instead, discussions are underway on a model where the council comprising the chiefs/deputy chiefs (Mayor/Deputy Mayor) of rural and municipal municipalities would be given the legislative authority of the province, making the province more streamlined.

Regarding the jurisdiction of the commissions I mentioned earlier, there can be a common consensus among all parties. Within the state structure, there is also the District Coordination Committee and the district level. Studies conducted by the Federal Parliament itself indicate that some of these structures have not been effective. There is a general consensus that their jurisdiction should either be expanded or they should be abolished. Specifically, if we are to adopt a federal system, there is a perception that the federal government has become too powerful or too centralized. Some suggest restructuring the provinces, and that the number of parliamentarians might be too high, or that the cabinet formation at both federal and provincial levels could be made more streamlined.

From a party perspective, regarding the form of governance, moving towards a directly elected executive would lead to a stable government, which in turn would facilitate development and prosperity. However, some parties, including the Nepali Congress, have concerns that a directly elected executive might lead to authoritarianism. Discussions are ongoing on mechanisms to prevent such concerns or to prevent authoritarianism.

Regarding provincial assemblies, I have already mentioned the issue of numbers. Currently, discussions are focused on two models. No conclusion has been reached yet. For instance, one model involves forming a council comprising the chairpersons, mayors, deputy chairpersons, and deputy mayors of rural and municipal municipalities, and this council would handle legislative work. This would also foster closer coordination between local and provincial levels. It is believed that this would prevent isolated functioning and lead to better resource utilization. Another perspective suggests that the parliamentary model currently in place in the provinces is adequate, and the number of members could be reduced. These are the subjects under discussion.

Regarding local levels, specifically, should local levels be free of political parties? Since local levels are responsible for service delivery, it has been observed that individuals elected from a particular party might be biased or appear to be so. Since service delivery must happen at this level and the day-to-day problems of the public must be addressed, it is not ideal if it becomes politically biased. Therefore, there is a view that local levels should be free of political parties. On the other hand, some argue that this would create difficulties in representation in the federal government and the National Assembly in the future. They argue that since we are in a multi-party system, the representatives must be from political parties, otherwise, the institutional structure would collapse.

The judiciary is unitary, and some other structures are also unitary. We are in a federal system; how to reconcile these is a matter of discussion.

Regarding the electoral system, the local level electoral system is adequate. In the provincial and federal electoral systems, we must ensure inclusion. There is also a concern that the mixed electoral system, which includes proportional representation that we adopted in the past, has been misused. If so, it is also possible to move towards a fully proportional form of governance with a directly elected executive. Furthermore, if parliamentarians do not become ministers and experts become ministers, the intense competition in elections, malpractices, and the entry of contractors into elections would end. From the perspective of separation of powers, it is appropriate for the parliament to legislate and the government to implement. If we are to stick to the parliamentary system, there can be two or three options. One is to reserve seats to ensure inclusion. The second option is to adopt a 'block vote system,' where a constituency is defined, and within that constituency, parties nominate 5, 7, or 10 candidates, ensuring inclusion. Whichever party wins ensures inclusion. These are the subjects under discussion.

Apart from these, there are technical issues, particularly regarding the provincial chief attorney not being connected to the Attorney General's office. The judiciary is unitary, and some structures are also unitary. We are in a federal system; how to reconcile these is a matter of discussion. For instance, consider the police; we have municipal police, but they have not been very effective.

• The federal police has not been implemented either, right?

In the provinces, the Minister of Internal Affairs acts as the Home Minister, but the lack of police under their command creates difficulties. How to resolve this? In the case of the judiciary, the need for a constitutional bench has been questioned; has it been effective or not? If not, is a constitutional court needed? There is also the view that the existing courts can handle all matters. The Supreme Court itself is a constitutional court, and it can function as one. What is the structure of the Constitutional Council? Is it appropriate?

Nepali Congress and some Madhesi parties remain firm on the parliamentary system. In the case of Congress, this stance seems to persist, as they believe it could lead to authoritarianism.

Furthermore, is the structure of the Judicial Council appropriate? Is the parliamentary hearing process correct? Specifically, the Constitutional Council makes recommendations, which include the Prime Minister and the Speaker. Is it appropriate for the Speaker to then scrutinize individuals recommended by the Deputy Speaker? The practice of scrutinizing and then appointing has been ongoing. Discussions are focused on how to reconcile these issues and what is most appropriate.

• During the constitution-making process, the main contentious issues were the form of governance, the electoral system, and the federal structure. In the first Constituent Assembly, the then Maoist party, a major party, proposed moving towards a directly elected executive. They also raised the issue of full proportionality. The second Constituent Assembly created the current constitution as a document of compromise. Coincidentally, after 12 years, you have gone to the elections with an agenda similar to the Maoists. You received nearly a two-thirds majority. With parties having similar agendas and a significant number of votes, will it be easier to amend the constitution?

Not all issues remain static. Furthermore, our party and the government have stated that we are open to all agendas. If we were to take a firm position, we would have brought a constitution amendment bill. After bringing the bill, discussions would have taken place, and the arithmetic of the parliament would have determined the outcome. However, since we have decided to prepare a discussion paper, we want to proceed with the consensus of all parties as much as possible. The constitution is also a sensitive issue. This is the constitution made by the Constituent Assembly. Therefore, based on our manifesto and the government's 100-point agenda, we still hold a position in favor of a directly elected executive. Whether to adopt a prime ministerial model or a presidential model for the directly elected executive is something we have not yet decided. We are still in discussion. The Maoists' preference at that time was for a directly elected president. UML favored a directly elected executive but with a prime minister. UML later compromised.

If we move towards a directly elected executive, as you mentioned, it appears somewhat easier.

Nepali Congress and some Madhesi parties remained firm on the parliamentary system. In the case of Congress, this stance seems to persist, as they believe it could lead to authoritarianism. They believe that moving towards a presidential system or a directly elected prime minister model might be difficult in a country like ours, and this belief still holds. UML has not taken a firm stance on what the form of governance should be. However, they compromised and adopted the parliamentary system at that time. Perhaps it can be resolved through discussions. Our position is not necessarily a rigid one, but rather what is most appropriate.

We have adopted the concept of a stable government. In terms of development, governments are formed for six months or a year, then collapse, and before plans can be initiated, the government changes, and a new government comes in – this has been a recurring tragedy we have experienced. Can this be rectified? Therefore, even if we move towards a directly elected executive, as you mentioned, it appears somewhat easier. However, our primary focus is to bring all parties together and reach a common consensus.

• During the 2079 elections, you did not give much importance to the provinces and advocated for their abolition. However, by the 2082 elections, you have taken a stance in favor of federalism. Another important issue is the perceived lack of role for the Vice President. Some suggest giving them the role of presiding over the National Assembly. Others argue that the country cannot afford federalism and it should be abolished. Have any suggestions been made on these matters?

It would not be appropriate for me to comment on whether it is necessary or not at this moment. As I mentioned earlier, we are open, and discussions are ongoing. Firstly, if we, as a major party, were not open or took a rigid stance, we could have directly introduced a constitution amendment bill. Secondly, our own party's manifesto now mentions improved provinces. What was the situation before, what concept did the party put forward during discussions, and what has emerged in the manifesto now are matters that evolve through discussion and deliberation. Perhaps the current thinking is that it would be more appropriate to improve the provinces rather than abolish them.

The Vice President has not been very practical or effective. The same has been said about the Deputy Speaker.

Our party's stance is not to abolish the provinces. 'Improved' means making the provincial assembly more effective and practical. By including the chairpersons/deputy chairpersons and mayors/deputy mayors of rural and municipal municipalities, the local and provincial levels would work more closely, facilitating smoother operations. It is believed that they would not hold onto their own claims and would work more effectively. As for the Vice President, there has not been much discussion on this. However, it is being considered whether it would be appropriate to give the role of the Chairperson of the National Assembly to the Vice President. The provinces and units, or rather, the National Assembly is considered the assembly of units. Therefore, we have formed a National Assembly of 59 members, with 56 members elected eight from each of the seven provinces, and three appointed by the President on the government's recommendation. This represents the assembly of provinces or units. It is being considered whether the Vice President should lead it. This is under discussion.

The Vice President has not been very practical or effective. The same has been said about the Deputy Speaker. In the case of the Deputy Speaker, responsibilities such as conducting certain sessions and authenticating bills are currently not assigned. There is also a proposal to assign all responsibilities of the Speaker to the Deputy Speaker when the Speaker is absent. Similarly, in the absence of the President, it is being discussed whether the Vice President should assume all presidential responsibilities and also chair the National Assembly. However, no such discussion has taken place regarding the provinces, as it does not concern a single province.

• No matter how improved the structure or constitution we create, the behavior of rulers once in power seems to differ. Is this a problem of genuine intent, or is there a weakness in the existing structure?

Regardless of who the ruler, individual, or party in power is, it is natural for them to seek their own convenience and wish for things to be easier for them to work. We adopted a federal system in the past. However, the mindset of the leadership of the government or the party was not geared towards effectively implementing the federal system. This is because it is difficult to implement something you dislike. We had a centralized mindset in the bureaucracy as well as among political leadership. As a result, we could not operate in accordance with the design made through the constitution.

When designing the constitution, all parties were brought together in the Constituent Assembly, resulting in a constitution that was somewhat like a camel – a compromise, incorporating elements from all parties, but leaving no party completely satisfied. This was because seven to eight years had passed, and there was a compulsion to promulgate it. On one hand, no one was willing to budge from their positions. On the other hand, Rastriya Prajatantra Party and Rastriya Janamorcha were of the opinion from the beginning that a federal system was not suitable for Nepal and would not work well, and they maintain this stance even now.

Rulers began to practice in a way that suited their convenience.

Therefore, there are some defects in the constitution and laws themselves. Some problems also lie with the individuals and their tendencies. The abrupt shift from a long-practiced system to a new one has led to a lack of adaptation. In the context of the federal system, political parties remained entirely unitary, while the system was federal. This resulted in even the candidate for ward chairperson being selected by the party chairman or president. This mismatch between the legal and constitutional systems created difficulties. If this alignment had been maintained, perhaps it would not have been so challenging.

Rulers began to practice in a way that suited their convenience. Therefore, we must move forward with the principles of separation of powers, balance, and control simultaneously. The parliament and the courts act as mechanisms to control and check the actions of the executive. Similarly, commissions also serve as mechanisms for checks and balances at times. The reason for establishing constitutional commissions is precisely that. However, they have been turned into recruitment centers for political parties. This is what has happened so far.

• Questions have been raised about the competence of the coordinator of the task force formed by the government. It has been more than a month and a half since the government published its 100-day agenda. Will this discussion paper be ready within that time?

Firstly, this is a program of the Government of Nepal. Some have argued that the program of the Government of Nepal should be oriented towards the legislature, led by the legislature, and come from political parties. However, what needs to be understood clearly here is that the task of this task force is to prepare a discussion paper for constitution amendment. As it is a task force, its leadership comes from the Prime Minister's Office, i.e., the government. The Prime Minister's Political Advisor has coordinated it on behalf of the government.

Based on our recommendations, a bill will then be prepared. That bill will be prepared by the Prime Minister's Office and the Council of Ministers. With the assistance of the Ministry of Law, that bill will be presented in parliament.

The questions you raised were somewhat raised in the initial days. After they were raised, his response was that he has no personal position, nor does the Government of Nepal have a fixed position. As he has the responsibility to coordinate on behalf of the government, he will coordinate. Technically, the nine members of the task force, plus three representatives from the government – specifically, the secretary of the Law Commission, the secretary dealing with law in the Prime Minister's Office, and the nine representatives from various parties – will discuss and finalize the subject matter. He stated that his role is to coordinate and facilitate, to bring everyone together. He clarified that the subject matter will be decided based on the consensus reached by the members. Therefore, the question of his capacity is irrelevant, as his role is to prepare a discussion paper, not to draft a bill.

Based on our recommendations, a bill will then be prepared. That bill will be prepared by the Prime Minister's Office and the Council of Ministers. With the assistance of the Ministry of Law, that bill will be presented in parliament. After it goes to parliament, discussions will take place among the parties, further discussions will be held, and discussions will occur in the House of Representatives and the National Assembly. If necessary, discussions will also be held with the provincial assemblies. Currently, we have asked all parties to come forward with their positions on which issues need amendment, what to do during amendment, and what the parties seek. They have provided initial input. We are trying to find a common consensus from within that.

We can submit that report within 100 days. Some parties have requested a little more time.

After that, we will prepare a discussion paper. We will recommend amendments to the discussion paper, stating that certain matters have been agreed upon for amendment. We will also mention the points on which consensus could not be reached and the positions of the respective parties on those unresolved issues in the report. After that, a discussion paper will be prepared.

The government can then proceed with advancing the amendment bill, implementing amendments on which there is consensus, and continuing discussions on unresolved issues. We can also proceed with amending all possible aspects at once. This might involve voting. Therefore, our primary focus is to immediately implement amendments on which there is a common consensus and to keep the unresolved issues under discussion.

We can submit that report within 100 days. Some parties have requested a little more time. They felt that they needed more time for discussions within their own parties and externally. If more time is needed, it can be granted. However, an initial report can be submitted within 100 days.