Contd..OBJECTIVE OF THE IC : TO INSTITUTIONALIZE THE ACHIEVEMENTS OF THE PAST MOVEMENTS (Objectives of 1990 Const: to guarantee human rights; to consolidate the Parliamentary System, Constitutional Monarchy and Multi Party Democracy; and to ensure the Rule of Law)
HUMAN RIGHTS COMMISSION GRANTED A CONSTITUTIONAL STATUS (But no Commissioner appointed yet)
CENTRALIZED EXECUTIVE WITH WEAK LEGISLATURE AND JUDICIARY, AND NO CLEAR STATUS AND POWER TO THE HEAD OF THE STATE (1990 Const. had a stron
INTERIM CONSTITUTION OF NEPAL, 2063 B.S. [2007] PRELIMINARY COMMENTS
The presentation includes:
PRILIMINARY OBSERVATIONS
BRIEF COMPARATIVE NOTE
CHALLENGES AND PROSPECTS
PRELIMINARY OBSERVATIONS
IT IS AN INTERIM LEGAL FRAMEWORK BUT A FUNDAMENTAL [SUPREME] LAW OF THE LAND (Article 1 of IC, like 1990 Const.)
IT IS LARGER THAN 1990 CONSTITUTION
-It has 25 Parts, 167 Articles and three Schedules
-Whereas 1990 Const. had 23 Parts, 133 Articles and three schedules
IT HAS BEEN PROMULGATED BY THE HOR AND ENDORSED BY THE NEWLY FORMED INTERIM LEGISLATURE [1990 Const. was promulgated by the King on the recommendation of the Council of Ministers]
TWO AMENDMENTS MADE IN LESS THAN SIX MONTHS
Contd..
OBJECTIVE OF THE IC : TO INSTITUTIONALIZE THE ACHIEVEMENTS OF THE PAST MOVEMENTS (Objectives of 1990 Const: to guarantee human rights; to consolidate the Parliamentary System, Constitutional Monarchy and Multi Party Democracy; and to ensure the Rule of Law)
HUMAN RIGHTS COMMISSION GRANTED A CONSTITUTIONAL STATUS (But no Commissioner appointed yet)
CENTRALIZED EXECUTIVE WITH WEAK LEGISLATURE AND JUDICIARY, AND NO CLEAR STATUS AND POWER TO THE HEAD OF THE STATE (1990 Const. had a strong judiciary responsible to protect the ‘basic features’ of the Constitution under Article 116)
FOCUS ON STATE RESTRUCTURING AND INCLUSIVE ASPECT OF DEMOCRACY (Articles 33, 63 and 138 and its amendment)
DECLARES NEPAL TO BE A SECULAR STATE (Article 4.1)
Fundamental Rights
ADDS EIGHT MORE CONSTITUTIONAL PROVISIONS UNDER THE CHAPTER ON FUNDAMENTAL RIGHTS, INCLUDING RIGHTS OF WOMAN AND CHILD,AND RIGHTS TO EMPLOYMENT, SOCIAL SECURITY, ENVIRONMENT AND HEALTH (Articles 12-33)
MORE NEW LAWS MAY BE REQUIRED FOR ENFORCEMENT OF RIGHTS (Articles:16-18 for example)
WEAK (Executive Oriented) JUDICIARY MAY NOT BE ABLE PROTECT AND ENFORCE THEM
EXECUTIVE
NO POWER TO THE HEAD OF THE STATE and is REMOVABLE BY 2/3 MAJORITY IN THE HOUSE (Chapters related to the King and his Royal Council repealed by the HoR, and 2nd Amendment )
POWERS OF THE HEAD OF THE STATE ENTRUSTED TO THE HEAD OF THE GOVERNMENT (ie Prime Minster and Council of Ministers)
PRIME MINISTER TO BE APPOINTED THROUGH CONSENSUS (amongst eight parties only: Article 38.1) OR BY 2/3 MAJORITY OF THE HOUSE (Article 38.2)
SECOND AMENDMENT MAKES THE PRIME MINISTER REMOVABLE (Article: 38.7) AND ADDS A PROVISION FOR OPPOSITION
PRIME MINISTER CAN APPOINT ANYONE FROM OUTSIDE AS MINISTER (Article 40)
PRIME MINISTER ENTRUSTED WITH IMMENSE POWERS RELATED TO THE LEGISLATURE, JUDICIARY AND CONSTITUTIONAL BODIES
LEGISLATURE
UNIQUE NAME: LEGISLATURE-PARLIAMENT
A LARGE UNICAMERAL BODY WITH 330 MEMBERS, INCLUDING THOSE APPOINTED BY THE CPN (M) [ Compared to 265 members of two chambers under 1990 Constitution. At present the House has only 329 MPs]
PM SUMMONS AND PROROGUES THE PARLIAMENTARY SESSIONS (Article 51)
ROLE OF OPPOSITION PARTIES ORIGINALLY NOT RECOGNIZED HAS BEEN INTROUDUCED BY SECOND AMENDMENT (Concept of consensus made questionable)
SPECIAL AND SUBJECT COMMITTEES FORMED (House Rules)
CONSTITUENT ASSEMBLY
A LARGE ELECTED ASSEMBLY WITH 480 ELECTED AND 17 NOMINATED MEMBERS (Article 63 after 1st Amendment)
33 PERCENT CANDIDACY OF WOMEN GUARANTEED FOR CA (Article 63.4), and 120 seats for women secured from the party list under proportional representation (CA Election Act, 2064)
TWO YEARS OF TERM UNLESS DISSOLVED EARLIER BY A RESOLUTION OR EXTENDED FOR ANOTHER SIX MONTHS (Article 64)
INHERITS THE RESPONSIBILITY OF THE LEGISLATURE-PARLIAMENT, BUT A SEPARATE COMMITTEE MAY BE CONSTITUTED FOR LEGISLATIVE BUSINESS (Articles 59 and 83)
NO AGENCY CREATED FOR CARRYING OUT PREPARATORY WORK OR FOR AWARENESS BUILDING
JUDICIARY AND CONSITUTIONAL BODIES
APPOINTMENT PROCESS MAY UNDERMINE THE INDEPENDENCE AND THE WORK OF JUDICIARY AND OTHER CONSTITUTIONAL BODIES INCLUDING THAT OF THE NATIONAL HUMAN RIGHTS COMMISSION (Article 103, 113, and 114)
PARLIAMENTARY HEARING FOR APPOINTMENT OF JUDGES (2nd Amendment)
REPORTING REQUIREMENTS NOT CONGENIAL TO JUDICIAL NORMS (eg. Articles 117, 133)
COMPOSITIONS OF CONSTITUTIONAL COUNCIL, JUDICIAL COUNCIL AND JUDICIAL SERVICE COMMISSION MAKES THEM EXECUTIVE DOMINATED
PROVISION OF CONSTITUTIONAL COURT FOR CA IS VAGUE IN TERMS OF ITS STATUS AND JURISDICTION (Article 118)
13 POINT RECOMMENDATIONS OF THE SUPREME COURT JUDGES AND OTHER RECOMMENDATIONS REGISTERED AT THE HOR ARE RELEVANT IN THIS REGARD
CHALLENGES
Size of the Interim legislature and Constituent Assembly
Weak mechanism of checks and balances (Weak judiciary and constitutional bodies)
Eight-party dominance in all state affairs
Executive entrusted with excessive powers
Security and law and order situation prior to and during CA elections
Too many laws and rules are to be made, and how much time legislature can spend on legislative debates ?
Amendments of the IC further adds problems
Lack of public consultation
Slow move to respond to emerging problems related to inclusiveness
PROSPECTS
ALL POLITICAL PARTIES APPEAR COMMITTED TO WORK TOGETHER AND HOLD CA ELECTIONS IN TIME (on 22nd November 2007)
HOUSE RULES MAY MITIGATE IC’S PROBLEMS
VIBRANT CIVIL SOCIETY, ESPECIALLY MEDIA
CONTINUITY OF INTERNATIONAL SUPPORT
ONGOING PEACE PROCESS
INCLUSIVE CONSTIUENT ASSEMBLY (??)
Prospect of an acceptable NEW CONSTITUTION
Comments