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Constituent Assembly: Constituent Assembly:

Concept, Election, Concept, Election,

Decision Making ProcessDecision Making Process and and

International ExperienceInternational Experience

PRESENTED BY : Purna Man Shakya

Munindra Awasthi

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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.

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Objective of the Objective of the Constituent Assembly Constituent Assembly To draft the constitution

To approve the constitution

To promulgate the constitution

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Source of authority of the Source of authority of the Constituent Assembly Constituent Assembly

a.  Sovereign power of the people

Revolution

Inherent right to self determination of the

people

ICCPR

Constitution of 2047 Preamble

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Basis of Legitimacy of the Basis of Legitimacy of the Constituent AssemblyConstituent 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 people Adherence or approval through referendum

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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 Process of the constituent assemblyassembly

       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

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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 representation16 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 ProcessConstitution 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 Structure of Constituent AssemblyAssembly

Decentralization

CommitteeSecretariat

DRAFTING COMMITTEE

Finance Committee

Full House

Government Structure Committee

Constitutional Bodies Committee

Human Rights Committee

Justice Committee

Reporting line

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Constitution Making Process Constitution Making Process continued ….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 Constitution Making Process continued ….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 Constitution Making Process continued ….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 Constitution Making Process continued ….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 International Experience on

Constitution Making ProcessConstitution Making Process India South Africa United States of America Australia United Kingdom Philippines

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Indian ExperienceIndian 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.

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South African ExperienceSouth 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 South African Experience Continued…..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 ExperienceAustralian 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 USAExperience 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

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