Purna Man Shakya Constituent Assembly: Concept, Election, Concept, Election, Decision Making Process Decision Making Process and and International Experience PRESENTED BY : Purna Man Shakya Munindra Awasthi

Purna Man Shakya Definition of Constituent Assembly An assembly of peoples representatives with a mandate to draft, approve and promulgate a constitution. Process of election may be different Constituent assembly may include nominated members.

Purna Man Shakya Objective of the Constituent Assembly To draft the constitution To approve the constitution To promulgate the constitution

Purna Man Shakya Source of authority of the Constituent Assembly a. Sovereign power of the people Revolution Inherent right to self determination of the people ICCPR Constitution of 2047 Preamble

Purna Man Shakya Basis of Legitimacy of the Constituent Assembly Principle of Authorship Direct / indirect authorship Effective representation of the people Inclusive and all embracing composition Deliberative participation of the people Equal opportunity to all to interact Acceptance of the peopleAdherence or approval through referendum

Purna Man Shakya Background of the Constituent Assembly CA issue raised since 2004 BS CA issue in 2007 peoples movement Eclipse of CA issue with general election in 2015 BS. CA issue was raised but ignored in 2047 BS. Maoist movement - CA as their main demand Seven parties adopt CA as common agenda CA election as the main agenda of Interim constitution.

Purna Man Shakya Why Constituent Assembly? To make people sovereign in theory and practice. To put an end to the issue of CA once and for all. To end the Maoist conflict in the country To enable restructuring of state as per the wish of the people. To give a stable constitution to Nepal To put an end to the inherent right of the King to give and take away the constitution.

Purna Man Shakya Process of the constituent assembly  Negotiation among the conflicting parties, political forces, professional organizations and civil society  Workout of the basic guidelines for the election of the constituent assembly and allocation of seats  Workout of the basic guidelines for the future constitution  Enactment of the Constituent Assembly Election Act incorporating basic guidelines  Neutralization of arms and militia held by political parties

Purna Man Shakya Formation of Constituent Assembly  Election commission to hold the election  Mixed election system Election through proportional representation Election through first past the post system 205 through direct election in 205 constituency 204 through proportional representation 16 to be nominated by council of ministers Size of CA to be revised

Purna Man Shakya Direct Election of 205 Members Constituency based election Candidates to be party based First past the post system Constituency to be redefined on the basis of population and geography

Purna Man Shakya Proportional Representation of 204 members The nation as a single constituency. Every party gives 204 members list for this election. The list is closed and cannot be changed Every party gets the quota in proportion to the percentage of votes cast in their favor in general election The list has to be inclusive (quota and methodology to be defined) The candidates in the top stands better chance and candidates in the bottom stands less chance.

Purna Man Shakya Constitution Making Process Summoning of constituent assembly by Interim Government Election of the chairperson and vice chairperson of the constituent assembly Passing of the constituent assembly procedural rules Formation of the drafting committee Formation of the technical advisory group Constitution of the subject committees Creation of constituent assembly secretariat

Purna Man Shakya Structure of Constituent Assembly Decentralization Committee Secretariat DRAFTING COMMITTEE Finance Committee Full House Government Structure Committee Constitutional Bodies Committee Human Rights Committee Justice Committee Reporting line

Purna Man Shakya Constitution Making Process continued …. Preparation of the preliminary draft by technical committee on the basis of the policy guidelines prepared by all party conference Discussion and adoption of the draft by Drafting committee for discussion Discussion of the draft by the full house of the constituent assembly

Purna Man Shakya Constitution Making Process continued …. Reference of the specific chapters to different subject committees Presentation of the report by the committee to the full house Discussion and adoption of the draft by full house as a preliminary draft Release of the draft for public feed back through internet, radio and other public media Visit of the members of the constituent assembly to their respective constituencies for feed back

Purna Man Shakya Constitution Making Process continued …. Collection of feedback through different means such as letters, s and petitions Preparation of report on the feed back of the people on the proposed preliminary draft Revision of the draft by drafting committee and incorporation of the suggestions as approved by the full house. Clause wise discussion of the draft constitution

Purna Man Shakya Constitution Making Process continued …. *Recording of constituent assembly debate for future reference *Referendum on major constitutional issues of sharp division of opinion *Final voting on the draft constitution *Promulgation of the constitution by constituent assembly *May be celebrated as a LOKTANTRA DIWAS

Purna Man Shakya Challenges Related to Constituent Assembly Maintenance of peace and security at the time of election Proportional representation issues Intense power struggle in constituent assembly election Public awareness of the constituent assembly Working out political consensus on future model of Nepalese democracy

Purna Man Shakya International Experience on Constitution Making Process India South Africa United States of America Australia United Kingdom Philippines

Purna Man Shakya Indian Experience Indian Independence Act 1947 Formation of the Constituent Assembly Representatives of British Provinces Representatives of the Indian States Representatives of the rulers of princely states. Dr. Ambedkar as chairman of the constituent assembly/the drafting committee The constitution was promulgated on 26 th Jan 1950 / Republic Day of India.

Purna Man Shakya South African Experience Calling of all party conference Agreement on future model of South African Democracy Preparation of 34 guidelines for future constitution Preparation and passage of interim constitution Passage of an Act for first democratic election of national assembly 490 members National assembly was to also act as constituent assembly

Purna Man Shakya South African Experience Continued….. Representation of seven parties were made on the basis of number of votes polled. Once the draft was ready, it was sent for review to constitutional court The constitutional court reviewed the draft on the basis of the guidelines prepared by all party conference. The court returned the draft for some corrections (8 inconsistencies were pointed out) The final draft was promulgated after signature of president.

Purna Man Shakya Australian Experience 6 British colonies : Western Australia, Northern Territory, South Australia, Queens land, New South Wales, Victoria and Tasmania Decides to become independent and united Prepares a draft federal constitution by representatives of the colonies Public discussion and approval by legislatures of the colonies Parliament of UK enacts the draft in to Commonwealth of Australia Act Australia accepts the crown of England as the head of the state.

Purna Man Shakya Experience of USA Philadelphia Conference of the representatives of the 13 states Philadelphia Declaration calling upon the states to go for constitution of the United States of America Discussion, opposition and final compromise Approval of the draft constitution by constitutional conventions of the thirteen states

Purna Man Shakya Constitutional Practices of United Kingdom  UK has no written constitution  Major part of the constitution based on customs and conventions  Certain constitutional matters are governed by Acts of Parliament  Parliament as continuing legislative and constituent assembly  Parliament Act  Sovereignty of Parliament is recognized

Purna Man Shakya Experience of Philippines Overthrow of Dictator President Marcos Takeover of power by Carazon Acquino Formation of constitution drafting assembly Referendum on draft constitution Promulgation of the constitution by the president

Purna Man Shakya Thankyou Purna Man Shakya