पहिलो संबिधानसभाले संबिधान लेख्ने छ भन्ने आषा धेरैले राखेका थिए। सुरु सुरुका दिनमा केहि काम पनि भएकै हो। संबिधान सभाले देश बिदेशमा रहेका नेपालीहरु संग नयां संबिधानका बिबिध पक्षबारे सुझाब पनि मागेको थियो। यसै सिलसिलामा आष्ट्रेलियाको राजधानि क्यानबरामा बसोबास गरिरहेका नेपालीहरुले पनि २२ फेब्रुवरि २००९ का दिन (अर्थात आज भन्दा ५ बर्ष र एक महिना अघि) नयाँ सम्बिधानमा के कस्तो ब्यबस्था भएदेखि उत्तम होला भन्ने बारेमा मन्थन गरि निष्कर्ष निकाल्न एउटा गोष्टिको आयोजना गरे। त्यो गोष्टिबाट निस्केको निष्कर्षलाई तात्कालिन राजदूत योगेन्द्र ढकाल मार्फत संबिधान सभामा पठाए।
त्यतिबेला नेपालमा कुनै पनि दलले नयाँ नेपालको शासकिय स्वरुप, संघियताको ढाँचा आदि सबै महत्वपूर्ण बुँदाहरु समेटेको एउटा औपचारिक धारणा बनाई सकेका थिएनन। बिभिन्न नेताहरुले बिभिन्न प्रकारका ब्यक्तिगत धारणा ब्यक्त गरिरहेका थिए। सबै भनाईहरुलाई एकठाउँमा राख्दा संबिधानमा हरेक ब्यक्ति वा समुहका हरेक मागहरु पुरा गर्ने ब्यबस्था हुनुपर्दछ भन्ने खालको अभिब्यक्ति देखिन्थ्यो।
अष्ट्रेलिया नेपाल मैत्रि समाज (Australia Nepal Friendship Society) क्यानबरा को आयोजनामा भएको उक्त गोष्टिले निकालेका निष्कर्षलाई फर्केर हेर्दा आजपनि उत्तिकै समसामयिक र सान्दर्भिक लागेकाले WeNepali का पाठकहरुको सुबिधाको लागि यो पेजमा राखेको छु।
आफै बिभिन्न मत राख्ने बौद्धिक जमातको सहमतिबाट निष्केका यि सुझाबहरुले हाम्रा राजनैतिक दलहरुलाइ अन्तर दलिय सहमति कायम गर्न सहयोग गर्लान भन्ने आषा पनि राखेको छु।
होम मूर्ति पन्त
१८ मार्च २०१४
Recommendation on the Concepts and contents to be incorporated in the future constitution of Nepal
The Australia Nepal Friendship Society Inc., Canberra, organised a one day workshop on Sunday 22 February 2009 at the Australian National University in Canberra to come at a community view on what should be included in the new constitution of Nepal.
The discussion was lively and the understandings were mostly unanimous. The key resolutions of the workshop are given below and the differences in opinion where existed are also noted.
1. On preamble
It is agreed that the preamble of the constitution should contain the following three points:
- That the constitution is promulgated by the sovereign people of Nepal;
- That the constitution must develop and promote the following institutions:
i. multiparty democracy,
ii. periodic election,
iii. fundamental rights of the people,
iv. rule of law,
v. independence of judiciary,
vi. inclusive nature of the state, and
vii. territorial integrity.
- That the constitution shall lay the foundation for a peaceful, just, harmonious, and prosperous federal democratic republic of Nepal that unleashes the full potential of its citizens.
2. On rights and duties of Nepali citizens
As mentioned in the interim constitution.
3. On restructuring of the state
To promote decentralization, cooperation and eliminate all kinds of disparities, including regional disparity, the country shall adopt a federal structure in which:
(a) The country shall have three levels of parliaments and governments – central, provincial and local.
(b) 4 or 5 provinces will be identified on the basis of major river basins (for example, as described in the attached paper by Er. BR Bhattarai on Federalism)
(c) Local units, which will also serve as electorates for all level of governments, based on current linguistic and ethnic compositions (for example, as described in the attached paper by Ram Acharya). Their names shall not, however, identify them as ethnic or linguistic units. The relevance of the names must remain current even after the population composition changes over time because of the increased mobility of people.
4. On division of power between the levels of governments
The key principle is to make local governments/bodies as powerful as possible without compromising the cooperative pact of the provinces and the nation as a whole (for example, see the concept forwarded by Prof. Shiva Gautam in the attached paper on Local Structure). An optimal division of power and responsibilities between different levels of governments is therefore a precondition for the cooperative environment (for example, see the idea floated by Prof Alok Bohara in the attached paper). This issue needs a thorough debate. An example of the power division could be as follows:
Federal: foreign relations and treaties, defense, fiscal and monetary policies, projects of national importance, income and trade tax;
Provinces: Provincial level planning, development and resource use based on the principle of subsidiarity;
Local: local level planning, development and resource use;
Concurrent: shared under cooperation between local bodies, states and the centre.
There may be situations in which needs/laws of different levels of government will be in conflict. In case of such conflict, federal laws shall prevail.
A Council of Nepal Governments shall be formed to determine the cooperative allocation of resources, development priorities and resolution of possible conflicts.
5. On inclusiveness
Inclusiveness is a must for a just society. It can be achieved gradually through positive discrimination in favour of the marginalized and disadvantaged individuals (rather than a group based, defined on any basis) based on, say, a means test. The need for such discrimination will fade away with balanced development as they cross and move above the pre-specified criterion. Positive discrimination practices with means test will discourage the development of an entrenched creamy layer who will have an incentive to perpetuate the marginalization and disadvantages of their own community.
Reservation based on positive discrimination with well targeted empowerment initiatives to disadvantaged and marginalized individuals could be the instrument for promoting inclusiveness. The constitution shall have such provisions.
6. On election of executives
The constitution shall adopt an electoral system in which
- the Prime Minister would be directly elected by a first-past-the -post system (with a majority vote of 51% or more), and
- the President would be indirectly elected under a proportional voting system by all parliamentarians of the country; and the President shall be the ceremonial head of the state;
- the national and provincial parliamentarians shall be elected by a mixed system (50-50 FPTP and proportional system);
- Some of the participants are also of the opinion that there must be a minimum educational qualification requirement for all directly elected members of all parliaments;
- a requirement of at least 2.5-5% of the vote shall be placed on all parties to be eligible for the allocation of proportional seats at all level of governments.
7. Council of Ministers
To remove the perverse incentive to parliamentarians to trade their support to the government with the ministerial berths and then to get involved in corruption, and to open the possibility of including non-political experts in the cabinet, the constitution shall explicitly and clearly state that:
- Members of parliament shall be strictly and universally prohibited from becoming ministers and taking up any position of profit;
- The PM shall nominate all ministers subject to the scrutiny of the nominated ministers by the Parliament Committee on minister nomination. The total number of ministers shall not exceed the numbers as specified in law. However, if a parliamentarian is nominated as a minister then his/her position in the parliament shall become vacant and a by-election will be held to fill the position;
- The Prime Minister and the council of ministers shall be accountable to the parliaments.
8. Term limits for the President and the Prime Minister
To encourage smooth transfer of leadership to younger generation, who come up with new ideas and higher spirit, and discourage the possibility of the capture of the state power by vested interest groups and perpetuation of their dominance, the constitution shall assert that:
- The PM shall have a maximum of two terms, each term not exceeding 5 years.
- The president shall have a maximum of one term not exceeding 6 years.
- The vacancy of the PM and the President posts must not come at the same point of time.
9. Power to remove the President, the Prime Minister and the ministers
There shall be an impeachment process for the president, prime minister and ministers before the legislature. If the president, prime minister or a minister is voted to be removed by 2/3 of the parliament then he should be removed.
10. To guarantee internal democracy in major political parties
All political parties are required to
– Have a full financial disclosure
– Be transparent in their financial dealings
– Hold national conventions in regular intervals
– Elect all national leaders, and
– Reject all applications by persons found corrupt by the court of law.
11. Amendment and control
The constitution shall have unalterable and alterable provisions:
Unalterables:
There should be core areas of the constitution which cannot be modified like the fundamental rights and the principles enshrined in the preamble.
Alterables:
1. Articles related to number, size and dissolution of constituent units of the federation may only be amended by a double majority of 2/3 votes of people and in at least 2/3 of the provinces.
2. For all others articles a simple majority of the parliament may amend the constitution.
12. Ratification of international treaties
As mentioned in the interim constitution
13. Emergency: declaration and power
As mentioned in the interim constitution
14. Residual powers and its use
The residual power will rest on the president. If a situation arises to exercise this power, the president shall work on the advice of the council of ministers. Any order issued under this authority shall have to be endorsed by the parliament within 60 days.
15. Treatment of non-resident Nepali population
Citizenship of Nepalis who obtain citizenship of other countries shall not be deemed automatically rescinded unless he or she notifies the appropriate authority otherwise in writing. Citizens who maintain dual citizenship shall not be able to hold some public positions as specified in law.
पत्र-पत्रिका बाट:
भिडतन्त्रबाट प्रतिभातन्त्रतिर स्वामी आनन्द अरुण