Suggestion for Nepalese Constitution

By Chandra Rai

Prepared for NRN-Canada, and NRNA as an input to the constitutional development process in Nepal
Brampton, Canada
2009 March 01

These suggestions are provided in a format prepared bt International Coordination Council of Non-resident Nepali Association (NRNA) and circulated by NRN-Canada National Coordination Council. This was originally intended to integrated with all other suggestions received. However, owing to various technical constraints, suggestions of individuals are passed in their original form.

No.
क्रम
संख्या
Item
विषय
Suggestions
सुझाव
1 preamble of the constitution संविधानको प्रस्तावना Preamble must include that Nepal is multi-cultural, multi-lingual, multi-religious secular socialist federal republic country that guarantees national sovereignty, independence, non-exploitation of labour and natural resources of the country for personal benefit of any entity other than the country, territorial integrity, social justice, all human rights defined in Universal Declaration of Human Rights  and dignified co-existence of people regardless of their personal, social, racial, linguistic, religious, cultural uniqueness and gender and ethnicity. It should also ensure positive discrimination for working class people and marginalized class, caste, ethnicity.
2 What rights and duties should be included in the constitution?कस्ता अधिकार र कर्त्तव्यलाई संविधानमा समावेश गर्ने? Regardless of their provincial origin, personal, social,  racial, linguistic, religious, cultural uniqueness and gender and ethnicity, citizens must have rights to

  1. Work, study, get medical care, elect representative(s), get elected and move freely inside Nepal.
  2. Work and earn their livelihood without exploitations and discriminations.
  3. Access to food, education, health care, shelter, and socially dignified living conditions.
  4. Have opportunities to have equal access to means of productions.
  5. Assemble, organize, protest and take arms as last resort of protest to defend their constitutional rights without infringing others’ rights stipulated by constitution.
  6. Practice personal beliefs without infringing others’ personal beliefs.
  7. Everybody physically and mentally able to work must voluntarily participate in physical work for at least few days a year (Like volunteer in construction projects or farming) 
  8. Free and Fair Access to education
  9. Freely enter into the country and exit from the country.
3 Should it be a presidential (.e.g. USA) or Lagislative bodyary (e.g UK) or a mixed system (e.g. France) of governance?तपाईंको विचारमा हाम्रो संविधान राष्ट्रपतीय (संयुक्त राज्य अमेरिका) वा संसदीय (बेलायत) वा मिश्रित (फ्रान्स) कस्तो प्रणालीमा आधारित हुनु पर्छ ?    
  1. Executive presidential system
  2. President or acting president should be impeachable by 2/3rd majority of total members of legislative body
  3. President or acting president should face national confidence vote if 10% of total voters request through election commission in writing to recall the president. If president does not get more than 50% votes in national confidence vote, he/she should be impeached and vice-president should be appointed as acting president by legislative body till new presidential election.
  4. Vice President should be appointed by president and accepted by more than 50% of total number of members of legislative body.
  5. Vice President should be impeachable by 2/3rd majority of total members of legislative body
4 What should be the electoral system? Should it be fully proportional or fully first-past-the-post system or a mixed one such as the one adopted in the election for the present CA?हाम्रो मुलुकले कस्तो निर्वाचन प्रणाली अपनाउनु वेश हुन्छ – पूर्ण समानुपातिक वा पहिलो हुने निर्वाचित हुने वा संविधान सभाको निर्वाचनमा प्रयोग भएको जस्तो मिश्रित व्यवस्था ?     
  1. Mixed (40% First Past Post, 60% proportional).
  2. President should be elected directly (First Past Post System). Wining Candidate of presidential election must win more than 50% of total casted votes. If nobody becomes able to get required vote in presidential election, second election should be organized between first and second candidate of first election.
  3. Every adult (18+) citizen who meets other provisions stipulated by constitution should have rights to elect his/her representative and/or get elected.
5 What should be the future federal structure of the country and how should the powers be divided or allocated between the centre and federal entities?हाम्रो मुलुकले कस्तो संघीय स्वरुपलाई अपनाउनु हितकार हुन्छ र संघीय एकाई एवं क्रेन्द्रकाबिच शक्तिको बाँडफाँड कस्तो आधारमा हुनु पर्छ ?  
  1. Nepal Should Adopt Federal System.
  2. Provinces should be divided based on Nations and groups with cultural and economic commonalities as primary basis and geography and natural resources as secondary basis.
  3. Every power except education, health care, natural resources management, foreign relation, military, reorganization of electoral systems and constituencies and monitory system should be with provinces.
  4. Education, health care and localized natural resources management should be shared responsibility (Example: If Karnali River flows through multiple provinces and has huge impact in national economy that should be responsibility of centre and if Babai River flows through Tharuwan Province only than it should fall under shared responsibility).
6 What provisions should be included in the constitution to control corruption by politicians and public officials?सार्वजनीक पद धारण गर्ने व्यक्ति एवं राजनीतिज्ञहरुबाट हुने भ्रष्टाचारलाई नियन्त्रण गर्न संविधानमा के कस्ता प्रावधानहरु राख्न आवश्यक ठान्नु हुन्छ ?
  1. Anybody accused and/or convicted of any crime or undergoing through criminal investigation should not be able to stand for any election and should not be allowed to participate in any political activity.
  2. Media standardization board should be formed and media should be standardized and declared public property to curb undue influence of money over politics. No foreign investment on media should be allowed and materials from foreign media outlets should be censored.
  3. State should provide equal opportunity of election campaign through media for candidates who can gather 0.5% voters as proposers and seconders.
  4. No money should be allowed to be spent by candidates, their parties and/or supporters of candidates for election or to influence election results.
  5. Every elected politician, political appointee and gazetted government officer and equivalent position holder of publicly own companies and incorporated companies should publicly disclose his/her property, gain and loss every year.
  6. A commission should be formed to evaluate such discloser. Randomly selected jury should be commissioned to evaluate property discloser of ministers, president, vice president, chief justice, Chief Army officer and Inspector General of Police. 
  7. Certain standard of knowledge of public office bearers should be specified (like Water Resources Minister should have some knowledge of water resources management.).
  8. A remuneration recommendation commission should be formed under appropriate ministry or constitutional body to recommend increase or decrease in pay of government employees, employees of constitutional bodies, publicly own companies, public corporations, elected representatives and advisers of elected representatives and all other agencies that use public funds. The commission recommended pay increase or decrease should be equitable, affordable and based on increase or decrease of market values of essential goods and commodities. Overall payment of maximum earner should not exceed three folds of minimum earner.
  9. Any person accused of corruption loses his/her right to appoint layer beyond legal aid system.
  10. Any elected representative must face recall election if written request of 10% of total voters of particular constituency with proper charges is received by election commission.
7 What provisions should be included to empower women and other people belonging to various marginalized, indigenous and other ethnic groups?महिला, आदिवासी र अन्य जाति-जनजाति समुहका सिमान्तकृत जनतालाई अधिकारसम्पन्न बनाउन संविधानमा के कस्ता प्रावधानहरु राख्‍न आवश्यक ठान्नु हुन्छ ?
  1. Federal system with power of self determination will automatically solve the problem of indigenous people and ethnic groups. Thus, the issue should be about marginalized gender, caste and ethnic group.
  2. Untouchability and caste segregation should be declared crime against humanity.
  3. Provincial minorities should have equitable reservation in provincial governance and resource distribution.
  4. Women should have rights to property, equal pay for equal work, child care assistance and maternity allowances and protection.
  5. Spouse of new mother should get paid maternity leave from work for three months of child delivery.
  6. Household chores and child care should be constitutionally considered productive work and be payable for by either household or state.
8 What provisions should be included to make the system of governance as inclusive as possible?राज्य संयन्त्रलाई बढि भन्दा बढि समावेशी बनाउन संविधानमा के कस्ता प्रावधानहरु राख्‍न आवश्यक ठान्नु हुन्छ ?
  1. Equitable resource distribution and equal representation in governing system should be guaranteed by the constitution.
  2. Each province should have autonomous regions for minorities, if needed.
  3. People should not be evicted from their traditional territory and special provisions should be made to protect languages and cultures of provincial minorities.
9 What should be the requirement to amend the constitution?संविधानको संशोधन गर्न कस्ता प्रावधानहरुको पालना गर्न जरुरी ठान्नु हुन्छ ? Constitution should be amended in two conditions

  1. If 3/4th of total number of members of Legislative body want it.
  2. If 2/3rd of provincial Legislative bodies want it by 50%+1 of total number members of their Legislative body.
10 What powers should Lagislative body or president or cabinet have in ratifying Nepal’s treaties with other nations?अन्य देशसँग गरिने सन्धीलाई अनुमोदन गर्ने प्रक्रिया कस्तो हुनुपर्छ र सरकार वा राष्ट्रपति वा संसदसँग यस सम्वन्धमा कस्तो अधिकार हुनु पर्छ ?  
  1. Treaties related to natural resources, national economy, national security and territorial alteration should be ratified by 3/4th majority of total number of members of Legislative body. This clause should not affect annulment unequal treaties signed between previous regimes and foreign governments.
  2. All other treaties should be ratified by 50%+1 members of total numbers of members of Legislative body.
  3. About natural recourses and territorial alteration, the treaty should be ratified by 50% +1 members of total number of concerned province also.
11 Under which conditions can a state of emergency be declared?कस्तो अवस्थामा राज्यलाई आपत्कालीन स्थितिको घोषणा गर्ने अधिकार हुनुपर्छ ?
  1. President should have rights to declare state emergency for not more than 6 months in whole or part of country in case of natural disaster, lack of possibilities of formation of stable government, foreign invasion or intervention and risk to territorial integrity.
  2. Legislative body should not be dissolved unless Legislative body itself becomes instrument of any foreign power(s) to disintegration of country or cede of sovereignty of whole or part of the country. Such dissolution should be ratified by referendum within 6 months of dissolution of Legislative body.  New Legislative body election should be held within 7 months of dissolution.
  3. Such emergency should be ratified by Legislative body within six months of emergency declaration.
12 Who should have residual powers and how should this be defined?अवशिष्ठ अधिकार (बाधाअड्चन फुकाउने अधिकार) लाई कसरी परिभाषित गर्ने र त्यस्तो अधिकार कोसँग रहने व्यवस्था हुनुपर्छ?   
  1. Residual power should remain in President.
  2. A residual power ratification committee comprising vice president, prime-minister or Chief Justice and speaker of house must evaluate president’s use of residual power and must rectify it within two weeks of use of such power and refer to the Legislative body for ratification.
  3. 50%+ 1 members of Legislative body should ratify the use of residual power by president and its ratification by the proposed committee within three months of inaction of such power.
  4. President’s use of residual power that does not win support from majority residual power ratification committee or/and the Legislative body should be deemed null and void.
13 How should the constitution enable NRNs to make a contribution to nation-building? In addition to the provision on dual nationality, what else should be included to ensure the participation by the NRNs to participate in the governance of the country?राष्ट्रनिर्माणमा गैरआवासीय नेपालीहरुको संलग्नतालाई प्रोत्साहित गर्न  दोहोरो नागरिकता लगायत संविधानमा अन्य के कस्ता प्रावधान राख्‍न आवश्यक ठान्नु हुन्छ ?
  1. No citizen should be deprived from citizenship unless the citizen in questions denounces his/her citizenship.
  2. Citizen, accepting citizenship of any country other than Nepal should have every rights of citizen except rights to elect, get elected and influence election results. Such citizen should get his/her rights back upon denouncing citizenship of the country other than Nepal.
  3. Citizen denouncing foreign citizenship should make his/her detailed activities in foreign soil public upon registering candidacy for any elected position. (For example, employees of CIA and US defence labs are barred from making their positions, roles and responsibility public. There can be similar laws and regulations around the globe. But, Nepal should not allow such person get elected to any position without revealing their activities, roles and responsibilities in foreign soil).
  4. Children of Nepali Citizen who were born outside of Nepal should also automatically get Nepali citizenship.
14 What other provisions should be included in the constitution to strengthen democracy, human rights, rule of law and promote economic development?मुलुकको लोकतन्त्र, मानव अधिकार, विधिको शासन तथा आर्थिक विकासको प्रवर्धन एवं सुदृढिकरणकालागि संविधानमा अन्य कस्ता प्रावधान राख्न जरुरी ठान्नु हुन्छ ? To protect workers’ rights and ensure citizens’ rights to access food, shelter, health care, education and work

  1. Constitution should bare citizen exploiting labour or violating prevailing labour laws from participating in political and governance system.
  2. Able citizen, not involved in productive activities by his or her choice should be barred from political and governance system.
15 Any other suggestion not included in the above list माथिका बाहेक अन्य कुनै महत्वपूर्ण सुझाव  
  1. A publicly funded and subsidized independent legal aid system comprising voluntarily registered law professionals should be commissioned to provide with legal services
    1. To people unable to pay for legal services they need.
    2. People convicted with corruption charges.
      1. Fees of legal aid services may be covered fully or partially by the state depending on clients’ financial condition and affordability.
      2. Person guilty of corruption must pay for the legal aid he or she received as well as the cost of complete legal procedure of his or her case.
  2. Ministry of Equalization and Interprovincial Relation should be formed to
    1. Keep records of natural resources of the country, provincial minorities and marginalized citizens.
    2. Ensure benefit of national natural resources is equally distributed.
    3. Ensure rights of provincial minorities and marginalized are protected.
    4. Ensure small and resource deprived provinces get fair share of national resources.
  3. State should accept rights of working masses to revolt as fundamental human right.
  4. Certain ratio between profit and workers’ salary and benefits should be defined that largest part of profit goes to the workers in terms of benefits, salary and bonuses.
  5. Anybody to be eligible for judge of any court, besides his/her legal background and all other constitutional procedures and formalities defined by constitution:
    1. Should be apolitical and willing to remain apolitical even after retiring from the position.
    2. Never have violated any law of the nation or accused of doing so
    3. Never have exploited labour or accused of doing so
    4. Never have exploited natural resources for anything other than personal survival and benefit of society and country or accused of doing so
    5. Never have been part of violent attack to anybody including cases of domestic violence except lawful duty in armed services.

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