Constituent Assembly:

1
Constituent Assembly

• Concept, Election,
• Decision Making Process
• and
• International Experience

PRESENTED BY Purna Man Shakya Munindra
Awasthi
2
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.

3
Objective of the Constituent Assembly

• To draft the constitution
• To approve the constitution
• To promulgate the constitution

4
Source of authority of the Constituent Assembly
5
Basis of Legitimacy of the Constituent Assembly
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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.

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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.

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

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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

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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.

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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

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Structure of Constituent Assembly
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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

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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

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Constitution Making Process continued .

• Collection of feedback through different means
  such as letters, emails 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

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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

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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

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International Experience on Constitution Making
Process

• India
• South Africa
• United States of America
• Australia
• United Kingdom
• Philippines

20
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 26th Jan 1950
  / Republic Day of India.

21
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

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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.

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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 1900.
• Australia accepts the crown of England as the
  head of the state.

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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

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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

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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

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Thankyou

• Purna Man Shakya