Constituent Assembly

Constituent Assembly

At present, Nepal is undergoing a complex transition due to the most dilemmatic and directionless situation in the history. The country has witnessed the failure of British-style multi-party, parliamentary monarchical system. The rule of state established by the Constitution of the Kingdom of Nepal, 2047 (AD 1990), that resulted from the People's Movement, 2046 and through mutual agreement of Nepali Congress, United Left Front and the King, has been inactive, directionless and almost defunct. But the future constitution and new rule of state that could replace it has not taken any form yet. This makes inevitable constitutional change on the basis of a lawful and fixed procedure. To achieve this, people have already commenced debate, discussion and interaction on a new structure of the state. The major issue in this regard has been deciding about the outline (form) of future state through the Constituent Assembly. No aspect or sector of modern Nepalese national life has been untouched by this issue.
Today, the civil society has taken a grave interest in this issue. How should be the new constitution? What should be nature of the elections for the Constituent Assembly? Such issues have been a matter ofcommon interest for the Maoists, parliamentarians, royalists (monarchists) and common people. In fact, after the King unilaterally breached the tripartite political agreement (understanding) reached upon after the People's Revolution, 2046, there seems to be no other alternative than the Constituent Assembly in order to restore a complete democratic system. The view that the sovereignty seized from the people can be regained only through the Constitutional Assembly is gaining momentum in the country. The Madheshee Janadhikar Forum, Nepal has presented some relevant issues feeling a dire need to hold widespread discussion, debate and interaction on these issues.
1. Background of the Constituent Assembly in Nepal
The issue of the Constituent Assembly has been raised in Nepal since BS 2007. But it is still an important political agenda without being concluded. Due to the pressure exerted by the armed rebellion of Nepali Congress in 2007, the then Prime Minister of India, Jawahar Lal Nehru made a proposal. Accordingly, the Rana premier Mohan Shumsher addressed the nation on 24 Paush 2007 (ie 9 January 1951) and declared "to form a Constituent Assembly through adult franchise all over Nepal, and to hold the first meeting of the Assembly within 2009". It was first declaration about the Constituent Assembly in the Nepalese history. Soon after, King Tribhuvan made a royal declaration on 7 Falgun 2007 (ie 18 February 1951), "WE have wished and decided to have the rule of our subjects henceforth in accordance with the Republican Constitution drafted by a Constituent Assembly elcted by them." Accordingly, the Interim government of the Ranas and Nepali Congress drafted Interim Constitution 2007 for a provisional period till the Constitution was formed through the Constituent Assembly. But the elections for the same were not held as per the royal declaration. Later, after the death of King Tribhuvan, his son King Mahendra ascended the throne and began a direct rule of the king, and thus stopped the elections of the the Constituent Assembly. On 24 Shrawan 2012 (ie 8 August 1955), the King declared to hold elections since the Ashwin Poornima (Full Moon Day) of 2014 (ie October 1957). But many contemporary political parties protested saying that the elections should be held for the Constituent Assembly, rather than the parliament. So King Mahendra made another royal declaration withholding the said elections. Nepali Congress, Nepali National Congress and Praja Parishad jointly protested the royal declaration and decided to hold Civil Disobedience since 22 Marg 2014 (7 December 1957). It was also particpated in by Communist Party of Nepal (CPN). The Civil Disobedience mainly aimed at holding the elections for the Constituent Assembly. But the agitation was postponed when King Mahendra declared again to hold general elections on 7 Falgun 2015 (ie 18 February 1959). The parties abandoned their demand for the Constituent Assembly and started preparing for the general elections. Thus the national politics took a different direction. Consequently, the parliamentary elections were held in which Nepali Congress had a sweeping majority, and form a government. In 2017 King Mahendra dissolved the elected government through direct military intervention. Then the meeting of the Central Committee of agitating Nepali Congress raised its voice in 2026 for the necessity of the Constituent Assembly. Earlier, the communist leader Mohan Bikram Singh had proposed about the justification (relavance) of the Constituent Assembly in a plenum of CPN held in Durbhanga (India) in 2019. Quite later, that is in 2043, CPN (4th Convention) raised its voice in favour of the Constituent Assembly. It reiterated its demand right after the People's Movement, 2046. In this regard, its leader Nirmal Lama, and CPN (Masal) demanded that the new constitution should be drafted through the Constituent Assembly. Then Nepal Sadbhawana Parishad (later turned into Nepal Sadbhawana Party, NSP) also expressed its view in favour of the Constituent Assembly. But the allies of Nepali Congress and United Left Front did not give any importance to the issue of the Constituent Assembly. As a result, the king promulgated the Constitution of the Kingdom of Nepal at the recommendation of a Commission formed through the mutual agreement between United Left Front, Nepali Congress and the King. Later this constitution was neither discussed nor debated or endorsed in the elected parliament. It is in regard with this constitution that the people are raising different voices like "What to do to the Cosntitution - amend or reform, hold the elections for the Constituent Assembly or rewrite the Constitution?". On the one hand, different political parties like CPN (Maoist), NSP (Anandi Devi), CPN (ML), Madheshee Janadhikar Forum-Nepal, and other organizations have been raising their voices in favour of the Constituent Assembly. On the other, many leaders and workers (activists) of CPN (UML) and Nepali Congress have sided with the Constituent Assembly.
In fact, the issue of the Constituent Assembly is not unique and completely new in Nepal. It had already become the major agenda of the contemporary politics ever since the revolution of 2007 after which it gained efficiency. The revolution was postponed only after the royal declaration of King Tribhuvan that the future rule of the country would be guided and directed by the Constitution drafted by the Constituent Assembly. Then Nepali Congress, CPN, Gorkha Parishad and Nepali National Congress had also supported the issued of the Constituent Assembly. Therefore, the agenda of the Constituent Assembly is not a fundamental issue raised by the Maoists. This should be taken as a common agenda of all the groups fighting today for establishing complete democratic political system in the country. All the constitutions of Nepal have so far been promulgated by the king. No constitution has been drafted through the participation of elected representatives. Therefore no constitution could place the people's power over the power and influence of monarchy, nor could establish constitutional supremacy. No constitution established the people as the major source of sovereignty and state power. Therefore political exit (outlet) today means establishing the abovementioned norms and values in the constitution. This cannot be achieved by reviving the almost defunct constitution or reactivizing the power manifest in the king, nor can a democratic system and constitutional rule be established in the country in this way. Therefore, all the groups having faith and belief in complete democratic system should stand in favour of the Constituent Assembly.
e the rule of our s2. Examples of the Constituent Assembly in the World
The Constituent Assembly is taken everywhere as a democratic process of drafting new constitution, changing the existing one and amending the same. India, Sri Lanka, America, France, Kenya, USSR (after 1917 Revolution), and South Africa all held the elections of the Constituent Assembly for this purpose. Here are some examples for your perusal (study).
America (USA) : Till 1789 no European nation a written constitution. Then, for the first time in the world history, America propounded a unique rule through the Constituent Assembly that was more democratic than contemporary British rule. 13 colonies revolted against England and declared independence on 4 July 1776. Then they formed a federation on 15 November 1977. These newly independent colonies decided to draft a new constitution which could unite them within a stronger union. Thus the representatives of the previous colonies held a conference in 1787 in Philadelphia. This conference was termed as the Constituent Assembly. It was attended by 55 representatives from all the states. They were George Washington, Alexander Hamilton, James Maddison, Benjamin Franklin, Robert Morris, John Dickenson, James Wilson and other dignitaries. Of them, 8 dignitaries had signed the Charter of the American Independence, and had taken part in almost all the revolutions. Jefferson even portrayed the Constituent Assembly as the "Assembly of the Avtars (Incarnations)". In fact, it was an assembly of extraordinary people. Despite prolonged debate and differences, they passed many proposals with a majority. The major ones were: Drafting a new republican constitution, provision of three organs in the state - Executive, Legislative and Judiciary, delegating more power to the states, providing the Congress a right to make laws, etc. The representatives of the conference made a coordination between principle and practice and drafted a constitution that established balance among different organs, and reduced the possibility of mutual disharmony among them.
The makers of the American constitution gave importance to 4 cardinal points in it:
1. To establish a system of good governance through the constitution. They made a provision of a powerful Executive for it.
2. To keep each organ mutually independent and balanced. For this, Legislative, Executive and Judiciary should be separated from each other while each exercizing check-and-balance.
3. To make the government responsible (accountable) to the people. This principle was implemented by making a constitutional provision to elect all the high officials of the administration, and holding periodical elections for the same.
4. The most important objective was: the question (issue) of individual freedom. Accordingly, Executive, Legislative and Judiciary were kept separate so that one could not make a tie (an alliance) with another and encroach upon individual freedom. Besides, the constitution safeguarded some rights of the individuals. Any breach of those rights entitled the concerned individuals to seek judicial treatment.
The Philadelphia Conference drafted the constitution in 1787 and presented the same to the Congress on 17 September of the same year for approval. After the Convention of the Congress endorsed it, the same was signed by all the state representatives, and presented to all the states for final approval. Thus the constitution was brought into effect only after it was passed and endorsed by majority of the states. In this way, the political history of America really starts only from the date when the states approved the constitution. The Constitution of the United States of America was enforced on 30 April 1789. This was a unique experiment in the world. The Preamble of the Constitution was very moving and inspiring. Indeed, the essence of the US Constitution lies therein. After the making of this constitution, the people learnt about their rights and had a strong feeling of nationalism. The vast majority of people were not only the citizens of different (separate) states but also had a sense of belonging to a vast nation.
India: During the Struggle for Freedom in India, the Indian National Congress firstly approved the proposal for the Constituent Assembly in 1934. Then only the British government was forced to accept it in August 1940. When the Labour Party formed government in England in 1945, it sent a cabinet mission to India to take important decisions. All the members of the cabinet mission and Viceroy and Governor-General presented a plan of action, and issued a joint communiqué regarding drafting the Constitution of India by the British government. Accrodingly, arrangements were made to elect the members of the Constituent Assembly by provincial assemblies. The Sikhs and Muslim legislators were allowed to elected their representatives as per quota on the basis of their population. It was according to the cabinet mission that the provincial assemblies elcted the members of the Constituent Assembly in July 1946. The provision was made to include altogether 389 members in assmebly the of constitution makers. It had one representative for each million. According to this, there were 292 members from 11 provinces, 93 from local principalities and 4 from union states. The provision was made to divide the number of members on the basis of population from among the major communities of each province at places where the elections for provincial assemblies were to be held. Moreover, the elections of the representatives of each community were to be held only by their members in the assemblies or as per different electoral system by the provincial assemblies.
On 9 Decembert 1946, the first meeting of the Constituent Assembly was held and was attended by 210 members only. They elected Dr Sachchidanand Sinha as a temporay President. Later on 11 December 1946, Dr Rajendra Prasad was elected as the President of the Constituent Assembly. The Muslim League, which was demanding a separate state for the Muslims, bycotted the Constituent Assembly and resorted to violent activities in the name of direct action. As per the agreement reached upon by some chief leaders of Indian National Congress and the leaders of Muslim League, the Viceroy declared and assented to partition India and form a new nation - Pakistan, on 3 June 1947. The partition of India changed the size of the Constituent Assembly. The Constituent Assembly was not a sovereign body. Rather it had to work under the plan and procedure of the cabinet mission. Its members were not directly elected by the people but were indirectly elected by the members of the provincial assemblies. The Constituent Assembly had representatives from all the major parties, classes, racial groups and religions. 210 members took part in its first meeting held in 1946. Of them, there were 155 Hindus, 30 scheduled castes, 4 Sikhs, 6 Indian Christians, 5 backward people, 3 Anglo-Indians, 3 Persians, and 4 Muslims. Seen from party viewpoint, representatives from almost all the political parties like Indian National Congress, Hindu Mahasabha, Scheduled Castes Association, Muslim League, etc were present in the Constituent Assembly. Another important aspect of the Constituent Assembly was the presence of the chief leaders of all the parties in it. From class perspective, representatives from all classes and interest groups, namely lawyers, doctors, landlords, professors, workers, journalists, judges, former administrators, capitalists and women, etc other elites were taking part in the Constituent Assembly.
d Judiciary should be separated from each other while eacOn 13 December 1936, the basic principles and objectives of the constitution were outlined in the objectives and proposal as presented by Pt Jawahar Lal Nehru. The proposal was approved of by the Constituent Assembly on 22 January 1947. In addition, the Constituent Assembly declared, "India will be an independent, sovereign and republican state, including autonomous units, and the people will constitute the source of power of the government. All the people will be given a right to justice, equality and independence. There will be essential provision for safeguarding the minorities, backward people, oppressed and other backward classes, and the integrity and sovereignty of the federal states will be retained." Later the proposal formed the basis of the Preamble of the Constitution.
On 29 August 1947, a 7-member draft committee was formed by the Constituent Assembly under the chairmanship of Dr Bhimrao Ambedakar. In addition, the Constituent Assembly formed other significant committees as well. They were federal Rights Committee, Federal Constitution Committee, Provincial Constitution Committee, Fundamental (Basic) Rights Committee, Minority Rights Committee, and so on. The draft of the Constituent Assembly was presented to the Chairperson on 21 February 1948. It was published in leading newspaper seeking the intellectuals' reactions to it. Then on 29 August 1947, Dr Ambedakar presented the draft formally to the Constituent Assembly. Altogether 7,635 amendment proposals were made to the proposed draft. Of them, 2,473 were widley discussed in the Constituent Assembly. Finally, the Constituent Assembly endorsed the draft constitution on 26 November 1949. It took 2 years 11 months and 18 days for the Constituent Assembly to draft a constitution in India. The last meeting of the Constituent Assembly was convened on 24 January 1950, when Dr Rajendra Prasad was selected as the First President of Indian Republic. Then all the members signed the constitution and decided to enforce the constitution on 26 January 1950. On the same date 20 years before, the Lahore Convention of Congress had declared their demand for complete autonomy (Swaraj).
France : The French Emperor Louis XVI (1774-93) decided to convene the parliament when he failed to solve the economic problem of the country. Accordingly, the parliamentary elections were held in 1789. It had three divisions or classes: The first class consisted of the aristocrats. The second class comprised of the clergymen. The third class was formed of the middle class workers and peasants' representatives sans any rights. The three classes had an unabridgeable gap among themselves (They held quite different opinions). Meanwhile, the first session of the parliament was held on 5 May 1789. But the meetings of the representatives of the three classes were convened separately. The representatives of the lower rung declared themselves as the only representative national assembly of France on 17 June 1789. They also decided to hold the national assembly themselves with following agendas: To end the prerogatives of the aristocrats and clergymen, declare human rights, seek solutions to economic problems, resolve the disputes related to the church, and above all, to draft a new constitution. The same national assembly drafted the new constitution. So it was called the Constituent Assembly. In 1791, the constitution was prepared by the national assembly and enforced after royal assent (emperor's approval). The constitution was based on Montesque's Theory of Separation of Power. The Constituent Assembly worked for about 2 years and 3 months, that is from 17 June 1789 to 30 September 1791. It was the first written constitution not only of France but also of the entire Europe. It established the first constitutional system in France. Though the constitution of 1791 is regarded as the landmark of progress in the French history, it did not last long. So the second elections for the Constituent Assembly were held on 23 April 1848.
Sri Lanka : In 1946 a new constitution was drafted after Ceylone got freedom from British colony. But, according to the constitution, the ultimate judiciary right was still reserved by the British privy council even after the coveted independence. Till then the Governor General of Sri Lanka was appointed by the British government. It went on till 1970/72. Thus Britain had retained Sri Lanka under modern colonialism. The people expressed great dissatisfaction over such constitutional framework of Sri Lanka. The voices were raised everywhere demanding the making of a new constitution by the representatives elected by the people. Meanwhile, general elections for the parliament were held in 1970. The Freedom Party of Sri Lanka won the election with about two-third majority. The party demanded that "the British sovereignty should recede from Sri Lanka and Sri Lanka should gain complete freedom". The elections gave a good opportunity to change the constitution. The parliament made a decision to convert the 157-member House of Representatives into the Constituent Assembly. Then the process of making a new constitution continued from 1970 to 1972. The Constituent Assembly passed 38 basic proposals. The new constitution established the President as the Head of State and the Supreme Commander of Army. The constitution lent supremacy to the national assembly. Thus the national assembly got complete right to change, amend and modify the constitution. Another important feature of the constitution was the concept of free and independent judiciary. Thus the new constitution of Sri Lanka was enforced in 1972. Then only an independent, sovereign and republican Sri Lanka was founded.
South Africa : The conflict against apartheid and racial discrimination ended in 1993 only through an agreement reach upon by the conflicting groups. There also the moot cause of conflict (bone of contention) was making a new constitution. The country was ruled by a minority group called National Party. The Constituent Assembly was unlikely to cater the interests of the minority groups. Political parties like Incatha Freedom Party also had the same opinion. But the African National Congress representing the majority of the Blacks strongly advocated for the Constituent Assembly. These two groups made a mutual agreement and held the first all-party roundtable conference. It was attended by all big and small political parties and organizations. They made free discussions and agreed upon the principles of the constitution. On the basis of those principles, the all-party conference made the first draft of internal constitution. It would direct the rule of the nation till the final constitution was made. Moreover, the all-party conference drafted necessary laws for democratic elections, and accordingly general elections for bicameral parliament were held in April 1974. It provided for national assembly and senate. The Constituent Assembly was formed of 490 members from both the Houses. It included representatives from all the parties. The number of the members of the Constituent Assembly was determined on the basis of the votes achieved by the party in the elections. This assembly prepared the final draft of the constitution. On 8 May 1996, a majority of 98% of the Constituent Assembly ratified the final draft and sent to the Constitutional Court for endorsement. The Constitutional Court saw whether the new draft complied to the pre-determined constitutional principles, and sent back to the Constituent Assembly, which re-endorsed the draft with certain amendments on 11 October 1996. On 10 December 1996, President Nelson Mandela signed the final draft, and promulgated the constitution to be enforced since 4 February 1997. Nepal can also learn a lot from politics and constitutional procedure of South Africa.
lasses had Kenya : Kenya had a different cycle of events. The Kenyan government did not take any initiative regarding the Constituent Assembly. It was rather done by the Kenya People's Commission, an ally of the civil society. The commission began to work independently without any assistance from the government. So the government started an all-party discussion fearing it would be separated from the process of making the constitution. Accordingly, it held the parliamentary elections, and made all the members of parliament ex-officio members of the Constituent Assembly. They made a study of different activities and steps necessary for making a new constitution and drafted an Act. The parliament also formed a constitutional commission, which was required to make a draft of the constitution and present to the Constituent Assembly. Later, a common process of review was begun by merging the legally formed commission and the one formed on civil level. It gave rise to heated debate, and many complications were seen regarding the agreement. The President insisted on getting parliamentary endorsement before giving finality to the constitution, as he had majority in the parliament. Moreover, the parliament had a parochial view about a new constitution. As a result, the President intervened to give finality to the constitution. Helpless, the civil society agreed to make a constitution on the basis of an agreement made with the President.
3. Issue of Amendment in the Present Constitution
The Constitution of Nepal was not made active and time-oriented in the last 14 years. Rather, it was kept static and untouched. Nor were any amendments made into it to cater the contemporary problems when the House of Representative elected by the people was active in the country. When Nepal Sadbhawana Party registered an ordinary proposal for constitutional amendment for solving the citizenship problem, it was defeated by a majority and thus the practice of constitutional amendment was blocked. It was but natural that all the political parties protested against it as the citizenship problem highly concerned the Madhesis. But many other problems were left unresolved as no amendment or reform was made into the constitution for its due modification. Parliamentary parties, especially Nepali Congress, CPN (UML) and even palace saw their interests being safeguarded in this very constitution. The palace and the political leaders feared that the constitutional amendment could alter the role of monarchy, subjugate the army under the parliament, and open a discussion about new structure of state, beside raising the vast issues of the rights of Madhesis, tribals, dalits, minorities, religious and linguistic communities, and women, which would hurt the old and traditional interests. No leaders of any political party dared to solve these problems in a constitutional way. Thus the process of constitutional development was not furthered by making timely amendment to the constitution.
At present, many norms and values, and basic structures of the present constitution have failed in the process of constitutional exercise. The norms and values provisioned in the constitution, namely multi-party system, constitutional monarchy, and sovereignty manifest in people have failed in practice. It has been historically proved that the Nepalese monarchs are not ready to abide by the principle of constitutional monarchy. The promise made by King Tribhuvan in BS 2007 failed when he was still alive in BS 2010. In BS 2015, parliamentary elections were held, but the parliamentary government was banned within a year and a half. Since King Mahendra defied the principles of constitutional monarchy and multi-party democracy, he imposed an autocratic no-party Panchayat system with active monarchy. The historical movement of BS 2046 restored the system of constitutional monarchy and multi-party democracy. But King Birendra was not satisfied with it as well. Seeing the actvities and expressions after the event of 18 Ashwin 2059 (ie 2 October 2002), King Gyanendra does seem willing to abide by the norms and values of constitutional monarchy. Thus since the kings of Nepal have so far been reluctant to abide by the principles of constitutional monarchy and multi-party democracy, the system is frequently under the threat of erasure, and people's fundamental rights have been curbed. The Constitution of the Kingdom of Nepal, 2047 copied the British-style system of constitutional monarchy and multi-party democracy, but failed to adopt the principles of democracy (people's rule), powerful parliament and parliamentary supremacy. Indeed, this experiment has been a complete failure in Nepal.
Another important aspect of the Constitution of the Kingdom of Nepal, 2047 is sovereignty manifest in people. But, in reality, Nepalese could never be the source of state power and fully sovereign. They could never enjoy the sovereign rights. Neither they promulgated the constitution, nor was the constitution discussed, debated and endorsed in elected House of Representatives. Nor could the House make any amendments to it. Consequently, the declaration of Ashwin 18 (ie 2 October) has invaved the main spirit of the constitution itself.
Today there is a heated debate in the country as to elect the Constituent Assembly or to make constitutional amendments. Not only the Maoists, but alslo people of different levels and classes have turned rebels. So the slogan of the political parties in favour of the constitutional amendment has lost its meaning as opposed to many voices raised in street in favour of republic state, constitutional assembly and new structure of state. The reality bite is the constitutional amendment can neither solve the present political problem (imbroglio), nor can it give a forward-moving exit to the country. The major agendas to be fixed in country now are: to change in the state structure for a complete democratic system, to subjugate the army under a civil government, to make people alone the major source of state power and fully sovereign, to make all aspects of the constitution alterable through a national referendum, the constitutional amendment end the British-style democracy which has been proved a failure and give a new alternative, the constitutional amendment make a provision for federal structure as well as regional or racial autonomy and right to self decision, to secure equality, impartiality and social justice for Madhesis, tribals, dalits and women, to establish constitutional or parliamentary supremacy, to make changes in election procedure, to democratize the multi-party system, to establish the rule of law, to facilitate the access of people of all communities to state power, means and resources without any discrimination, to end the racial discrimination, to end internal colonization against Madheshor were any amendments made into it to cat and Madhesis practised perennially (for centuries), to establish fundamental human rights. These cannot be achieved by sheer amendment in the constitution. Only the Constitutional Assembly can awaken a feeling in the sovereign people that the state belongs to them, and can address the strong slogans in favour of republic state and restructuring of the state. This needs a completely new constitution. There is no other way out for the political imbroglio caused by the present armed conflict in the country than the Constitutional Assembly. The new constitution must at least provide the people an unconditional right to make decisions on monarchy or republic and other national affairs through peaceful, constitutional process through the Constitutional Assembly. It must include essential factors of a democratic constitution like federalism, proportionate rule and representation, regional or racial autonomy, division of state power, multi-party system, establishment of fundamental human rights, and end of all sorts of discrimination, that is colour, sex, language, religion, region, race and culture, in a constitutional way. The present constitution has many obstacles which hinder the process of making the people sovereign in real sense by altering certain provisions in it through national referendum. It is not at all possible to effect restructuring the state by amending the constitution "without altering the spirit or sentiment of the Preamble of the Constitution".
The unitary structure founded by King Prithvi Narayan Shah of Gorkha through force, power and deceit after demolishing the autonomous and republican states scattered in different parts of the country, like Madhes, hills and valley during his expansion campaign in the name of unification, was just an autocratic, unitary system of state. It fosters the policy of "One Language and One Dress", which lends supremacy only to two high castes, one or two tribes, one language, one religion, one dress, and one class. Without altering this struture and form of unitary system, and without establishing federal system and regional or provincial autonomy, the hilly Brahmins and Kshatriyas will retain their supremacy, and the Hindu religion, Nepali language, and hilly dress will exercise their prerogative in practice, no matter how much we talk about equality, democracy and forward-moving outlet, and who leads a party or government. No revolutionary slogan or document of any party can check it. During the Gurkha expansion, Prithvi Narayan Shah had seized the sovereignty of different racial republic and subjected their peoples. The people of those subjugated republics must now enjoy autonomy or the feeling of autonomy through a political change. This requires altering the present unitary structure, multi-party parliamentary system and state structure. This is not possible through constitutional amendment. It needs the establishment of the Constituent Assembly.
4. Formation of the Constituent Assembly
At present, the issue of the Constituent Assembly begins with such queries as - Who should declare the Constituent Assembly, and how should it be formed? Certainly, this is the most relevant matter. First and foremost, there must be mutual agreement among the king, Maoists and major parliamentary parties regarding the Constituent Assembly. Then the the Constituent Assembly must be declared through an all-party conference or roundtable conference, and an interim constitution should be drafted to cater for the time being till a new one is drafted and finalized. The conference must also define the procedure of the Constituent Assembly, election procedire and rules and regulations.
Since the Constituent Assembly is formed by the representatives elected directly by the people, the latter will have a direct participation in the making of a constitution. The best method is to hold the elections for the Constituent Assembly through proportionate election procedure. Another method may be like the present parliamentary elections. But while holding elections in this way requires redefining the constituencies for the Constituent Assembly on the basis of population. Otherwise, it would lead to destruction, violence and civil war. Each and every political party and organization can carry their agendas to be included in the constitution through their respective manifestoes for people's opinion in the elections. They can field candidates advocating their views. The Constituent Assembly thus elected directly by the people will be automatically dissolved after the promulgation of the constitution. Then all the activities will be done and made in accordance with the new constitution. The assembly of thus elected representatives will form a committee to draft a constitution. It will do accordingly, and present the same to the assembly for debate, discussion and endorsement. The assembly will also define its working methods and procedures. Thus the assembly will make a wide discussion on the draft constitution presented to it. A draft committee alone cannot complete all the tasks of making a constitution. There must be many sub-committees for defining the structure of the state, division of state power, and power balance, and so on. These sub-committees consist of politicians and constitution experts. They discuss on different matters and agendas and give finality to the draft constitution. The Constituent Assembly finalizes most of them unequivocally, and others through voting. After the Constituent Assembly passes it, the people make the final declaration of the constitution. The king need not give any assent or put his seal once the constitution is made. The constitution can be promulgated by the Head of the Constituent Assembly himself or herself.
To hold free and impartial elections, an all-party interim government must be formed to check the misuse of state means and resources and power by any political party or individual. International organizations and bodies should be invited to watch and observe the elections. Their presence must be guaranteed from the elections of the Constituent Assembly to the enforcement of the constitution. The constitution thus made by the Constituent Assembly must be committed and determined to respect and regard the people's mandate., sex, language, religion, reg



1. Racial Structure of Nepal :
Nepal has always been divided in three vast regions - Himalayas, hills and Madhesh - as per the formation of mountain ranges. They are called Madhesh (Terai or plains), hills and mountains (Himalayas). These three regions have many differences (are diverse) in terms of their landforms, and racial, social and cultural structure (features), and language. The Himalayan region is inhabited by the Bhotes (Tibetans), Sherpas, Thakalis, Tamangs, Vyasis, Lepchas, and the like. The hills are occupied prominently by different castes like Brahmins, Kshatriyas, Wadis (), Damais (Tailors), Gaines (Troubadours<<), Kamis (Blacksmiths), Sannyasis (Ascetics), Sarkis (Cobblers), Thakuris, etc and ethnic groups like Chepangs, Gurungs, Jirels, Lepchas, Limbus, Magars, Newars, Rais, Danuwars, Tamangs, Dhamis, etc. The Madhesh region is further divided as Inner Plains and Outer Plains. The Madheshee castes include Botes, ? Danuwars, Darais, Brahmins, Lohars (Luhars = Ironsmiths), Badhais (Carpenters), Chamars (Shoemakers), Dhobis (Washermen), Batars, Dusadhs, Tatmas, Gangais, Haluwais (Confectioners), Doms (Sweepers), Kanus, Mehtars (Sweepers), Kayasths (Scribes), Amats, Barais, Bins (Fishermen), Chidimars (Bird Hunters), Kahars (Carriers), Dhuniyas (Carders), Kamars, Lodhis, Kewats, Kaibaraths, Khatwes, Kumhars (Kumhales = Potters), Malis (Gardeners and Florists), Kurmis, Shikaris (Hunters), Kushwahas, Rauniyars (Businessmen), Malahs (Fishermen), Stogi, Musahars, Kathbaniyas, Rajdhobs, Gaderis, Sarbariyas, Rajbhars, Rajputs, Telis (Oilsellers), Sudis, Kalwars, Yadavs/Ahirs (Cow/Buffalo Tenders), Danuwars??, Dhanuks, Sonars (Sunars or Bandas = Goldsmiths), Dhimals, Hajams/Nais (Barbers), Kushmas, Meche, Koche, Rajvanshis, Tharus, Kisans (Farmers), Satars/Santhals, Jhagads, Mundas, Tajpuriyas, Bengalis, Marwadis, Muslims, Sikhs, and so on. Of them, the Sikhs and Muslims are known as religious groups or sects. The Muslim community is subdivided as Shekh, Syed, Pathan, Dhuniya, Julaha (Weaver), etc. These castes are collectively termed as Madhesis. Though Nepal is regarded as the only Hindu Kingdom of the world, it is inhabited by people of different religions and cults like Hindus, Buddhists, Islams, Kirants, Christians, Jains, Shikhs, etc. Accroding to National Census, 2001, there are about 100 languages and doalects.
We can also talk about the origins and traditional sites of many castes and communities of Nepal. In general, the Upper Kirant in the eastern hills (across the Arun River) is a site of the Limbus. They mainly speak Limbu. The Middle Kirant (from Indrawati to Arun) is inhabited traditionally by the Rais. Sankhuwasabha, Bhojpur, Solukhumbu, Khotang, Okhaldhunga, Dhankuta and some parts of Udaypur is occupied by the Rais (Khambus). They mainly speak Khambu languages. The Tamangs live around the Mahabharat Range, especially the hilly areas around the Kathmandu Valley. They speak Tamang language in their ancestral land. The Gurungs are traditionally scattered between Budhi Gandaki and Kali Gandaki. The ancient habitats of Tamu (Gurungs) are Gorkha, Lamjung, Manang, Kaski, Syangja and Tanahun. Their chief language is Gurung. The Magars have settle in 12 Magarat, that is Tanahun, Kaski through Western Syangja, Parvat, Palpa up to Rolpa, Rukum and Jajarkot. They predominate the area and speak Magar language. The Newars are the major inhabitants of the Kathmandu Valley. They live mostly in Kathmandu, Bhaktapur and Lalitpur. Their major language is Nepal Bhasha or Newari. Similarly, the Khas people (Khasiyas) live mainly in Karnali region. The Khas region covers Salyan, Arghakhanchi, Gulmi, Baglung, Dolpa, Jajarkot, Surkhet, Dailekh, Jumla, Mugu, Kalikot, Humla, Doti, Darchula, Baitadi, Bajhang, Bajura, Dadeldhura, Achham, a major part of the Khas state in the western Nepal, one of the two major provinces of the Sinja state - Khasan and Jadan. The latter two had earlier been under the Khas state. The major language, here, is Khas. Likewise, the entire belt ranging from Mechi in the east and Mahakali in the west, the Inner Terai in the north and the plains extending up to the Indian border is called Madhesh (Terai or the plains). Madhesh (Terai) is the plain or surface land in the southern Nepal. The major districts of the Madhesh are Kailali, Kanchanpur, Banke, Bardiya, Rupandehi, Kapilvastu, Nawalparasi, Parsa, Bara, Rautahat, Sarlahi, Dhanusha, Mahottari, Siraha, Saptari, Sunsari, Morang and Jhapa. The Inner Madhesh comprises of Dang, Chitwan, Makwanpur, Sindhuli and some parts of Udaypur. There live Hindus, Buddhists, Muslims, Christians, Shikhs and Jains. They speak Maithili, Bhojpuri, Awadhi, Dhimali, Santhali, Jhangad, Bengali, Urdu, Rajvanshi, Surjapuri, Bajjika, Tharu, Hindi, etc. Linguistically speaking, Hindi is a common language or lingua franca among the entire Madheshee people.
2. Need for Change in Rule (Ruling System) and New State Structure :
At present, there is a widespread debate, discussion and interaction in the country regarding the new form or structure of state. It has a great significance. Though the Constitution of Nepal, 2047 has defined Nepal as a multilingual, multiracial and multicultural country, it was not addressed from a political angle. The Constitution established Nepal merely as constitutional monarchical multi-party democracy under unitary system. It gave constitutional recognition to the traditional policy of autocratic Panchayat of "One Language, One Dress". Thus it retained constitutional discrimination, disregard and segregation towards people of other many languages, dresses, religions and regions than those speaking Nepali, following Hinduism and wearing hilly dress (daura, suruwal and topi). Nepal did not have such unitary system before Prithvi Narayan Shah expanded the Gorkha kingdom. Instead there were ethnic republics and landforms in every region based on independent, autonomous structure. The Kathmandu Valley had Newari states, the eastern hills had Kirat states, the mid western hills had Baisi-Chaubise states (Twenty-Two and Twenty-Four Principalities), western hills had Khas stste, Magarat region had Magar states, and Madhesh had autonomous Madheshee states. Prithvi Narayan Shah and his successors destroyed all these states and republics through military force and annexed them in Gorkha. After the rise of Rana regime, it made its rule more centralized, and the central power grew to a great extreme. They (Ranas) imposed their autocratic rule on the Madhesh and Madhesis as well as the tribals and ethnic groups of the hills. During the Shah rule and Ranarchy, imperialism and semi-colonization reached its apex. Moreover, the rulers accelerated their grip and vigilance on the hilly people. Ever since Prithvi Narayan annexed the Madhesh in his state, the Madhesis became a prey to racial or ethnic torture. Since they have won over the Madhes, the aristocrats and Khasiyas did not trust the Madhesis. They tried to prolong and prop their rule with the help of the hilly people. Due to the lack of trust in the Madhesis, they built a highway along the central Madheshms are known as religious groups and settled the hilly people on either side.
The changes made in the Panchayat regime following the revoluion of BS 2007, and even later had no impact on the centralized unitary rule of the state. Even the Constitution of Nepal-2047, following the people's movement in 2046, tried to retain the state in centralized unitary system. As in past, the new constitution could not reflect the ethnic diversity and multiplicity of Nepal. Therefore, it is high time to bring Nepal into decentralized structure. Now it is time to end the undemocratic, centralized, unitarism. Democracy cannot be restored in Nepal without changing the state structure and ruling system. It is not at all possible to restore complete democracy in a multi-racial, multi-lingual and multi-cultural country like Nepal without providing regional or racial autonomy under a federal system. Since Nepal is a multi-racial, multi-lingual, multi-cultural and multi-religious country, the constitution must adopt a broader national character by embracing and addressing these social and racial features. Present democracy must not be confied to political democracy but reflect the social justice as well. Political democracy without social one does not hold significance in a country like ours. Therefore, the present democratic system must have a provision of proportionate representation at all levels of the government - federal, state and local levels. This should be practised at all levels, that is Executive, Legislative and Judiciary, as well as army, police and entire bureaucracy.
pur. Their major language is Nepal Bhasha 3. Federal Rule :
The term "Federalism" derives from Latin "Foidus". It means "treaty" or "agreement". The essential feature of the modern federal state is that two or more independent regions or states make a mutual agreement to form a new state.
First of all, the federal system was introduced in 1789 when America drafted its constitution. It is recognized as "the permanent union of sovereign states". Similarly, Russia was later renamed as Soviet Union. The federal rule empasizes on "union" rather than "unity". All the state or province taking part in it get an opportunity to make progress as they retain their national character. The Supreme Court has a very significant role in the federal system, especially regarding the rights of the central government, state government or provincial government, in interpreting the constitutional terms, and in safeguarding the fundamental rights of the citizens.
At present, around 21 nations have successfully experimenting federal and semi-federal systems, and federal constitution. Even great nations, inhabiting almost over half the world population and covering as much land, have adopted federal system of rule. They are: United States of America, Switzerland, Australia, India, Canada, Pakistan, Germany, Nigeria, Malaysia, Indonesia, Libya, Ethiopia, Mali Federation, Uganda, Cameroon Republic, Argentina, Brazil, Mexico, Venezuela, West Indies, Austria, Belgium, Spain, Russia and so on. Though the United Kingdom (Britain) has adopted unitary system, it has provided regional autonomy to some extent in order to cater to the demands of its units. Britain is making an experiment in unitary system. It has carefully recognized the independent nature and feature of Wales, Scotland and Ireland as multi-racial, multi-cultural and multi-ethnic countries. But there are many countries in the world which have not adopted unitary system, so they are fighting against their people for local and regional autonomy, racial self-rule and cultural rights. The neighbouring country, Sri Lanka, has adopted unitary system and given prominence to Sinhalese people and language at the cost of the Tamil people and language. Thus it has landed itself in a volcanic situation of racial conflict (civil war) for past two decades. So far about 68 thousand people have lost their lives. But countries have easily solved such problems and strengthened national unity by adopting federal system. According to the experience of the contemporary world, the federal system has lessened the racial, regional and linguistc conflicts. Not that the federal countries are rid of all problems, but they are solved by autonomous local and regional governments through decentralization and democratic process. So there is little likeliness of communal riots or eth nic violence. Since every ethnic group has got autonomy, their conflicts are usually resolved peacefully through mutual understanding. The problems of Basques of Spain, Moros of the Phillippines, and Miskitos of Nicaragua and the like have been solved just by providing ethnic and regional autonomy. Our neighbouring India has recognized ethnic diversity and has solved many problems like Gorkhaland, Jharkhand, Chhatisgadh, Telangana, Uttaranchal, Mizo, Naga, and the like, and has been solving many other problems of the same nature.
4. Approaches of Federal Rule :
Different views have been expressed at different periods on federal system. Theoretically, the countries running under federal system have adopted one of the three prominent approaches: Anglo-American System, German system, and Soviet system. Yet there have two prominent approaches in practice - traditional approaches and modern approaches (perspectives). According to the traditional approach, the rights to make decisions on state affairs are manifested traditionally and constitutionally in central authorities and different regional officials. But, according to the modern approach, the dynamic federal system emphasizes the essential variables of the unification (integrity) of social and economic powers as well as national unification, and solving different problems arising at different times on their own. Accroding a famous scholar, A K Dickey, the federal system means power division among central, state or regional governments. Accroding to this concept, power division is the main basis of the federal system. The Supreme Court gives the final verdict as per constitutional provision on any dispute arising between the central and state governments. Central government and state government do not interfere with each other's affairs and rights. Similarly, another view gives prominence to federal principles in federal constitution. According to this, federal principles means equal and independent division of state power within the common sphere of the central governments. Under this system, state power and authority has been equally and independently distributed among the federal government, central government, regional autonomous governments and state governments within a common national boundary. This has been regarded as a very practical approach.
Most of the scholars of modern age have promoted this approach of federal system. At present, many countries of the world having social diversity have started adopting federal system. It has three major bases: First, each federation enjoys different achievements made through their activities. These achievements may be political, economic or military or all of them. The country has a written constitution as a supreme law. Both central and regional governments derive their rights from it. Second, the issues and rights of common or national interests of all the unions of federal region or country fall under the jurisdiction of central, national or federal government. For example, Foreign Affairs, Defence, Communication and Finance (Monetary). Issues of local or regional importance like police, jail, social security, subordinate courts, local governance, electricity, local roads and public transport, drinking water supply, health, agriculture, finance, public welfare, education, industry, etc fall under the jurisdiction of the central government, or that of the state government, if not mentioned in the constitution. Some rights fall under the jurisdiction of both federal and state governments. For example: citizenship, rights of elections, public loans, higher education, agriculture, irrigation, natural resources, etc. Third, while making power division between the central or federal states, their jurisdictions are defined in a way to retain their autonomy. Therefore, federal system is indeed balanced distribution of power and authorities inherent with central and state governments. No state can separate itself from the union, nor can the federal government interfere with state affairs.
The centre has central government, supreme court, central legislative and national assembly, and people's parliaments. The latter has direct representation of people. It has representatives elected by the people on the basis of proportionate population from each state. On the other hand, national assembly consists of reprentatives hailing from all regions or states as well as all castes, people speaking different languages and representing various classes and sectors. Similarly, each state has their own constitution, regional or state government. Each makes their own plans and budgets. Each state can impose their taxation. These rights should be practised in accordance with the jurisdiction provided in the constitution. A two-third majority of supreme people's parliament and national assembly should pass and state or regional legislatives should endorse the amendment in the federal constitution or alteration of any provisions. Some countries have a provision of amending the constitution through referendum.
hey are solved by autonomous local and regional governmAfter gaining regional or racial autonomy under the federal system, each caste makes political, economic, social, cultural development and progress and retains their national identity within the framework of their self-rule. The principle of the existence (entity) of all castes and specific identity in racial understanding within the country is a major agenda. It is attained by relieving themselves of racial exploitation, oppression and discrimination, and developing language, culture, art and literature of each caste/tribe on the basis of the principle of mutual racial cooperation and respect. It obviates intervention from the state. The centre or regime should give prominence to implementing racial understanding regarding the structure of central, federal, regional local strata and perspective about the races. Here the state must needs be sensitive towards imparting education in the mother tongue of the racial communities, following the multi-lingual policy of the state, providing reservation to those classes which have not been embraced in the national mainstream, maintaining secularism, safeguarding and developing the existing cultures, protecting and empowering castes/tribes, and developing human resources, and promoting proportionate participation in state operation. It should provide regional or racial autonomy to different communities to develop their languages, cultures and personalities, and should encourage building autonomous entitites on the levels of district, town, ilaka, village and so on.
In this way, the federal system works as the backbone of national unification of multi-racial, multi-cultural and multi-lingual country.
5. Concept of Federal System and New State in Nepal :
Federal system is now inevitable in Nepal to end the existing discriminatory rule in the context of its being a multi-racial, multi-lingual and multi-cultural country. This alone can provide autonomy to different linguistic, cultural and racial communities. Different communities can make economic development and develop the concept of national identity only through this system. Then only can end the age-long racial discrimination in the country and effect national unification emotionally. In addition, it alone can solve the existing racial and regional conflicts.
We all know that the state and the people backed by it have been practising political and social discrimination against the Madhesis in Nepal. The dsicrimination was retained even during the parliamentary practices made in the last 14 years. Only the federal system can end the discrimination between the Madhesis and hilly people (Pahadis). So far the country has retained a discriminatory unitary rule on the basis of caste, language, creed and sex. Instead, we should decentralize the central rule and form regionally autonomous states or provinces. Thus we would expand the government up to local autonomous bodies. Then only can we make the rule fully democratic and participatory in an authentic way. Only the federal system can make it possible to have proportionate representation in the government by the people having different langauges, castes/tribes, creeds and cultures. Many countries like Austria, Holland, New Zealand, Switzerland, Germany, Papua New Guinea and Belgium have solved the racial problem like Nepal through this system, and have presented themselves as a model of development.
The primary impact of the unitary system of Nepal is erasing the independent identity of the Madhesis, and imposing the hilly culture, Nepali language and labeda suruwal (so called national dress) as the one and only national identity. Besides, the state has weakened the economic wellbeing of the Madhesh by transporting the local means and resources to the hills and capital city, Kathmandu, and thus strengthened the existing state power. The tendency of backing and imposing the hilly identity as the only national identity has counterdeveloped a dangerous tendency of recognizing and establishing the hilly people as the only bona fide citizens of Nepal, and denigrating the Madhesis as Indian immigrants. Ever since the development of Gorkha state as Nepal, the Madhesh has been the greatest source of revenue for any government. Indeed, Madhesh has proved a "milch cow" for the ruling people in Kathmandu and the hilly people of the mountains. After the expansionist Gurkhas seized the Madhes, the government tried to cut down the local population to a minority by deforesting the Charkose Jhadi and inhabiting hundreds of thousands of hilly migrants along it. This has led to a crisis identity among the Madhesis of the Madhes. The Gurkhas established a rule of internal colonization after capturing the Madhes. The Madhesh and the Madhesis cannot develop so long they get rid of it. Therefore, the major political problem of the Madhesh and the Madhesis has been relieving them(selves) of the pain, oppression and exploitation inflicted bt the internal colonization. Till then the Madhesis will be disregarded as the second citizens. So the government should provide regional autonomy to the entire and undivided Madhes, ranging from Mechi in east and Mahakali in west, inner Terai in north and the sourthern plains bordering India, and recognize their ancestral land or birthplace as their homeland. Only after the establishment of regional autonomy in Madhesh can end the trend of internal colonization imposed by the Gurkha expansionists. The hilly rulers have always retained this sort of exploitation and oppression through different conspiracies, deceits, and have sown a seed of division, conflict and weakness among the Madhesis in the name of castes/tribes, languages and religions ever since Ranarchy and Panchayat autocracy. For centuries, the state has been indulged in such activities as separating the Tharus for general Madhesis and exploiting them as a weaker class, dividing the Muslims in the name of religion and tempting them with a distinct entity as a minority of scheduled caste in the fashion of Indian constitution, creating an environment of conflcit among the people speaking Bhojpuri, Awadhi and Maithili, using the oppressed class of Madhesis against the general Madhesis, presenting the Rajbanshis, Gangais, Dhimals, Santhals, etc as non-Madhesis, denying the recognition of the Madhesh area east to Koashi as Madhes, seizing the land of the Madhesis and rehabilitating the non-Madhesis or hilly people thereupon in the name of landless squatters (sukumbasis), political victims, rehabilitation company, etc. Similarly, to talk about racial autonomy or racial self-rule instead of regional or provincial autonomy is just an extremely aristocratic thought representing hilly people's racial arrogance and neo-imperialism. Therefore, the concept of regional autonomy is and will be better than racial self-rule. Racialism stands for collective feeling of a certain class of people living in a place on the basis of language, culture, tradition and ancestry. So it is a common culture and emotional belongingness on the basis of historical experience. It need not have any relation to certain land area. Yet the issue of racial regionalism cannot be separated from caste and land area. The Gurkha king Prithvi Narayan Shah expanded his kingdom by destablizing the native people or their kings or chieftains through force and fraud. He also captured the states and principalities of the non-Hindus of the Madheshon emotionally. In addition, it alone and hills, and thus established the Hindu kingdom. He called it the "real Hindusthan" (site of Hindus). It was a cultural campaign of building a Hindu state. Because only later did he establish the prominence and predominance of Hindu norms and thoughts (schools) on the basis of the state mechanism. As a result, many non-Hindu castes felt a crisis of cultural identity. In the contemporary context, issues like non-discrimination and equality (equal sharing) in political, economic, social opportunities, linguistic and cultural recognition, racial autonomy and self-decision always come along with that of racialism.
Some political groups and racial organizations have been raising the issue of racial autonomy or racial region as a political agenda. But the concept seems to be very complex and practically very difficult. Today, the trend of migration, and development transport and information technology (IT) has effected fundamental change in Nepalese structure. A village without racial diversity is almost a rarity in present-day Nepal. For centuries, migration of the Khas Brahmins from western hills to the eastern ones, that from hills to the Madhesh and from villages to the cities, and from other parts of the country to Kathmandu in a centralized way has made it difficult to separate racial provinces having prominence of secular population. Racial provinces may be named on the basis of the traditional habitats of different castes, but the castes with historic population will fall in great minority in terms of population in most of the districts. The majority of dalits do not have any defined site as they have scattered all over. Where will the majority of Khas (Brahmins, Kshatriyas, Ranas, Thakuris and Muslim community) seek shelter? Those claiming to provide "racial state or self-rule" without proper homework in a country like Nepal which has probably the rarest racial structure and problem in the world have cheated the tribals. About 100 rethnic groups have been recorded in 2001 census. Except some districts, no district has up to 51% of any caste. Of them 9 districts have up to 50% of Kshatriyas, 1 district has Tamangs, 1 district has Magars, 1 district has Gurungs, and 1 district has Newars. The districts said to have predominance of Brahmins, Rais and Limbus have less than 50% of of their population in comparison to the entire population. How can a racial state be formed in such a condition? Thus the state formed on the basis of the name of a race cannot solve the problem. Can the racial states guarantee the participation and euality in opportunity and contribution in basic cultural, religious, linguistc and national identity? Since the major goals of the state are to attain economic achievements, they are not possible through forming states purely on the basis of races. What will be the effect of on other majority races inhabiting those racial states? Without addressing or solving such issues, the country cannot give any forward moving outlet.
In the new state structure, decentralization should be made on regional basis. Racial self-rule is manifest within regional autonomy. Therefore decentralization enforced purely on racial basis cannot be forward moving. Indeed, such decentralization can only be aristocratic and racially egoistic. It is neither democratic, nor people-oriented, nor socialist. There might be many dangers of forming a union as a racial unit on racial basis. For example, the Serbs have caused such problem in Yugoslavia. In sich a condition, the majority can chase away the minorities. It can lead to another separatist danger in the country.
After the Gurkha king Prithvi Narayan Shah expanded his empire, a trend developed of regarding the highly centralized aristocratic rulers, Hindus, Nepali speakers, and those wearing daura and suruwal as the only Nepalese citizens. A handful of rulers of certain caste (especially Brahmins, Kshatriyas and Shahas, Thakuris, etc) overshadowed the needs of other castes. All the means and resources, and opportunities were exploited to cater their own interests. This made the Madhesis, tribals and dalits the most marginalized, oppressed and exploited groups as well as a prey to racial discrimination, and led to country to internal rife. Neglected for long by the ruling people, these racial or ethnic groups have now been raising the voice for a need to have the right to self-rule. To solve this, we need regional or provincial autonomy in the country on the basis of federal structure involving different states and provinces. These structures should be based on language, ethnic groups, socio-cultural structure, population and geography. The rights of each state to cultural autonomy, ethnic self-rule and self decision should be constitutionally guaranteed. All legal, political, economic and cultural provisions and practices causing ethnic, regional and other sorts of discrimination among the peoples should be uprooted. This problem can be solved by making provisions for proportionate rule and representation of all castes/tribals in federal or central bodies as well as state or regional nad local ones, that is all state affairs. Even the minorities, as linguistic, racial and religious communities, can raise their problems and present their demands in an effective way through their state governments. These cannot be achieved by exerting pressure on unitary and centralized state system as they fall in a petty group and have a very poor say. As the minority groups of certain race and language cannot build a separate state, the federal system allows building national autonomous areas for their development. Thus an environment conducive to decentralizing the centralized unitary system into a federal one, and extending the same to provincial or regional structure and local autonomous bodies therein, and making the governance authentically democratic and participatory, and making the structure representative. Therefore, we firmly affirm that the forthcoming constitution should accommodate following major features:
a. People's Sovereignty : The forthcoming constitution should be based on the principle of sovereignty in people. There should be no dilemma that the people should be made sovereign. People alone should be invested with full sovereignty and be established as the major source of state power. Their supremacy should be established in the very constitution by making a provision therein in writing that "WE Nepalese citizens build and establish this constitution of the state". The constitution should establish a representative and democratic rule.
b. Structure of State or Governance : All the democracies of the world can be divided into two structures: One is majority structure, that is Westminster Style, and another is agreement type, that is one based on sharing the state power. The first is based on British style of democracy. It is one of the oldest strutures of democracy. Its major feature is that those having majority own everything. That is to say, all the power is manifest in cabinet or Council of Ministers formed by the party with majority votes or seats. All the decisions are made through the majority of the parliament or Members of Parliament. The minority or Opposition expresses their view but to no avail, as their view is not considered or implemented in the parliament. It has to wait for another parliamentary elections and sweep the majority votes to have its say. This is the major principle of the majority rule. At present, Nepal is following this type of majority rule. But the experiment of last 12/14 years has proved it a failure. We have borne many grave or dire consequences of the parliament selecting the Prime Minister on the central level, and the latter dissolving the parliament any time at his or her whim. In the 12 years prior to the direct rule of the king, there were 11 governments formed in the country. They could not solve any of the national problems.
ic achievements, thThe agreement type of structure or one sharing the state power is enforced in Switzerland, Austria and Carribean nations. This model is adopted in South Africa as well. It is a type of structure in which only a party having majority does not rule. It includes other minority parties, too. It provides due place and opportunity to all political parties to express their views or vent their opinions. It provides proportionate share in the government. It invites all social and cultural groups to take part in policy making. The majority type of governance or democracy has been proved highly detrimental to a multiracial, multicultural and multilingual country like Nepal where we cannot ignore the presence of the minorities. This system has been discriminatory in real practice. Here, the majority takes all. As a result, it cannot respect the political, social and economic expectations of the minorities. They cannot take part in the governance. Therefore, only agreement type of democracy can be suitable in our country.
c. Managing the Army : The army should be mobilized and managed through a body formed under democratic principles. The army should be of national struture. It should be mobilized, controlled and managed essentially through the supreme people's organization, that is, elected parliament and the Executive or government accountable to it. The present unitary form of the army should be abolished and there must be due provision for inclusion and participation of the Madhesis, dalits and different castes/tribals on a proportionate level.
d. Provision of Reservation : There must be a provision of representational organization of extremely marginalized dalits in economic and political terms, very poor people and women, and for reservation in education and job sectors. The dalit groups which have been marginalized for thousands of years, cannot even imagine to reach the level of (at par with) other citizens of the country without reservation. It is a compensation to social injustice.
e. Election Procedure : We should adopt a proportionate election procedure instead of the present one to include all the castes/tribals, women and backward people and classes in the state affairs. It means sharing the seats on the basis of the votes attained by the political parties. It has been popular in Austria, Belgium, Costa Rica, Columbia, Denmark, Finland, Spain, Switzerland, Sweden, Norway and so on. In this system of election, the political parties prepare a list of their candidates before holding the elections. Later, they get certain seats as per the votes they bag in the elections. Thus every vote is meaningul in this system. It gives importance to political rather than individual relations among the voters and political workers. It can accommodate all the castes, tribes, sectors, classes and languages, and it is just as well. It has nominal role of position (rule), pelf and power. Therefore, the elections are less expensive and more impartial. Every vote is counted directly, and ends the rat race and revengeful politics. So the proportionate election system is more democratic than other systems. It promotes proportionate representation of all political levels and bodies.
f. Rights to Self-decision : Rights to self-decision are a basic principle of international law. These are also included in the Universal Declaration of Human Rights, International Covenant of Political and Civil Rights, and Economic, Social and Cultural Rights. These do not imply the rights to form a separate racial state, but "internal autonomy" as defined by the United Nations Organization.
g. Separation of Powers : All the three powers of the government, namely Legislative, Executive and Judiciary, should be separated for democracy and indiviual independence. That is, these three organs (bodies) of the government should be mutual separate and independent. Thus each can check another's tyranny, or can control another for striking balance in the government.
h. Republicanism : Theoretically, real constitutional monarchy means the state system that adopts basically adopts the republican values. Whatever be the future state structure in form, it should be republican in element. The basic principles of the republic system are: strong presence of elected Executive and Legistaive. The major feature of the republican state is that the Executive post should not be confined to a particular individual, caste or family (dynasty). Each and every individual, even the commonest one, hopes and wishes to reach every post, even the supreme post, of the state.
i. Declaration of a Secular State : Religion is a matter pertaining to individual faith and belief of people. It should have no relation with the state. The state should not stand in favour of one religion and against another. Religious matters and political affairs are two poles apart. There must be complete religious freedom for human rights and democracy. Nepal is a multi-religious country. Therefore, it should be declared as "a secular state" instead of a Hindu kingdom. It should provide equal freedom to all religions. The state should not back one or another religion, and should remain neutral in such affairs.
j. Supremacy of Constitution : Constitutional supremacy is considered the most significant principle or faith of in a federal democracy. Since the federal constitution is an impentrable agreement for the co-existence of federal government or central government and state governments, its clauses should essentially be agreeable to both. The constitution reigns higher than both the centre and the state. Besides, the constitution is essentially lent supremacy for implementing "a rule of law". Therefore, federal constitution reigns atop all the institutions of the national governance - central government, state constitutions, state governments and local governments.
k. Provision of Referendum : There must be a constitutional provision of referendum for making amendments in any of constitutional provisions by the parliament, as per demand in accordance with the procedure provisioned in the constitution. The constitution must provide the citizens every right to constitutional initiative. If the results of the refendum go in favour of a group, it can change or amend any of its provisions. Sovereign people can alter the entire constitution if they wish so. There should nothing unalterable in it. Sovereign people must essentially have a right to initiative and right to referendum.