The Constituent Assembly And Its Roadmap

By LALIT BAHADUR BASNET

The entire country is mentally prepared for holding election of Constituent Assembly within next year. We were waiting for an interim constitution, its details and the date of its promulgation. But interim constitution drafting committee produced an incomplete document. When we talk about election of constituent assembly, the interim constitution should manage the composition (how many members to be elected); it's timing (when to conduct election); the electoral system (how to elect); and the authority (who will conduct). They are the main important matters, which should be considered by the interim constitution.

Reliable sources have said that the government and the Maoists have reached agreement on some political issues. Likewise, the constituent assembly would have 425 seats. The CA election will be of mixed proportionate type. 205 members in the CA will be directly elected from the existing constituencies and the political parties in proportion to the popular votes they garner during CA polls will nominate another 204. On CA polls, the Maoists and the UML had favored proportional system but the NC wanted a direct vote. In the end a compromise was reached with mixed proportionate elections. But general people do not know about the meaning and process of constituent assembly. That's why civic education is needed at the local level.

What is constituent assembly?

The general term it refers to is a body convened for a specific period of time whose primary purpose is to draft a constitution. The concept of the constituent assembly implied the right of people to determine their own future and decide the nature and type of the polity under which they like to live. It was the perhaps for this reason that during the last two hundred years it was recognized all over the word that the people had an inherent right to govern themselves, through a representative assembly of their own. The concept of CA hold significance in the evolution of the principals of democracy and national self-determination and nations who fought for their independence always demanded a CA in one form or the other. In simple words, it is the elected political body by the people to write new constitution.

Why a constituent assembly?

Most assemblies are convened following a major constitutional crisis or upheaval such as the defeat of Nazi German in WWII, the end of civil war in Switzerland or the end of minority rule in South Africa . In some places, constituent assemblies are often marked by either an absence of functioning political institutions (such as Germany in 1945) or the inability of existing institutions to arrive at a constitutional solution (the hapless Spanish Parliament following the death of dictator Francisco Franco). In the political vacuum, constitution assembly is held to write new constitution. Politically, it is called a fresh start to choose the polity system.

Who is involved and how do they work?

The election of the constituent assembly is a very long and complex process. Some process already should have been initiated here such as how delegates are selected; whom they represent and how assembly operates. Generally, the politicians and other opinion leaders are usually involved and tend to dominate the process. Some assemblies of other countries have had significant representation from scholars, constitutional experts, religious leaders, and etc. That's why, this process should be addressed before the election of constituent assembly.

Selection of delegation (election process)

Generally three types of election process of assemblies can be clearly identified around the world based on how delegates are selected.

Direct or indirect process- In Canadian constituent assembly, all delegates were directly elected in 1946. The 1897 Australian assembly, which created the Australian federation, was designed to be fully elected body. There are some constituent assemblies, which are indirectly elected, through a federal parliament and provincial legislature. Such a convention has been held in the United States , (1787), India (1946), Germany (1948) and Australia (1973).

Both (direct and indirect) - These type of assemblies are the hybrid, which uses more than one delegate selection procedure. Delegates can be elected directly and indirectly, such as in Australia (1897) and South Africa (1994), or through a combination of direct election and appointment such as Spain (1977).

Method of Representations

Basis of representation in the constituent assemblies is a big challenge. Will it be based on representation by population, equal regional representation, or some combination of both? Should other basis of representation such as party affiliation, ethnicity or language be considered? Under a representation by population (rep by pop) scheme the country either can be divided into equally sized constituencies with each electing one delegate like Canada or each province can act as one constituency and elect the predetermined numbers of delegates based on that provinces population vis-à-vis other provinces like the lower houses of Spain's assembly. If delegates are to be indirectly elected, provincial legislatures can select a number of delegates based on the population represented by that legislature like in India and Germany . The second basis of representation ignores the population altogether and treats each province or state equally like the United of States, Australia, the Switzerland etc. The rep-by-pop and regional equality approach can also be married, producing yet another type of hybrid like in Spain and South Africa .

Ratification

There are four basic ratification approaches. First, the assembly itself ratifies its own actions through the holding of a vote like in India and South Africa . The government could ratify the action of the assembly like in Newfoundland , Spain , and Australia . This method can be used with the high degree of variation. For example, the vote can be held on one day across the nation, which was held in Spain or be held independently in each province or state on various dates like in Australia . A 50 plus one vote was enough to ratify the actions of the assembly while at other times an extraordinary majority was required. In some countries referendum was held to ratify the action of the constituent assembly.

There are a lot of examples of success and failure of the constituent assembly - From the French constituent assembly of 1789 to the Peru 's Alberto Fujimori’s Democratic Constitutional Congress of 1992, the world has seen dozens of Constitution Assemblies but not any perfect constitution produced by it. The failure of constituent assembly in Russia , France , Pakistan and its success in India , Italy , Northern Ireland , South Africa and other African countries show different pictures. Some countries have been split because of the constituent assembly. That's why, it is a task for a nation to hold election of constituent assembly. It is not as easy as talking. If not properly managed, the constituent assembly, it will open Pandora’s box.

(The author is a constitutional lawyer. He can be reached at lalit_gulmi@yahoo.com )