Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

Might the CA also require the new constitution to seek public approval in a


referendum? Article 157 authorises the CA, through a vote of two-thirds of members


present, to refer to a referendum matters of ‘national importance’ on which it is


necessary to make a decision (‘except as otherwise provided elsewhere in the


Constitution’). The purpose and scope of this article is not immediately clear,


but some clues regarding its function may be gleaned by noting where the article


has been placed in the IC and by parsing the definition of what constitutes


conditions under which the article can be used: the article is located in the chapter


titled ‘Miscellaneous’, just before the article dealing with the ‘power to remove


difficulties’, and the referendum is to deal with a matter not ‘otherwise provided


elsewhere in the Constitution’. This treatment accorded the article suggests that a


referendum may be used for deciding the outcome of something unexpected,


something sufficiently critical that it must be decided by the people, regardless of


the cost or complexity of a referendum. As the procedures for the adoption


of provisions of the new constitution are set out at some length in Part 7 of the


IC, it is unlikely that the referendum can be used to resolve an issue relating to


the new constitution. However, the general view seems to be that the referendum


may be used on important issues that failed to win a two-thirds majority.


Decision-making by the CA


The IC establishes a very complex decision-making system. While determination of


the future of the monarchy is kept simple – a majority verdict on whether to retain


the institution or not – all remaining decisions on the new constitution must be


adopted by unanimity (Article 70 ( 2 )). Failing such an outcome – even if there is


just one vote in opposition – the procedures for finding a new compromise come


into effect, requiring that the party political leaders engage in consultations with


each other over the following fifteen days, with a further vote then taking place


seven days after the completion of the consultation. If unanimous agreement is


still not reached, the decision can be made when two-thirds of the members of the


CA are present and if two-thirds of them vote in support of the original proposal


(Article 70 ( 6 )). It is a cumbersome and time-consuming process, but the intentions


seem to be honourable.


Time lines


On the question of the length of time allowed for the conclusion of the process,


there are generally two opposing views. One is that constitution-making is so


critical to the future of the country that it should not be rushed, that people


must be given ample opportunities to participate in the process, and that there


must be enough time provided for educating the people and consulting with


them. Others argue that if too much time is allowed, the members of the CA,


Politics of constitution demolishing and constitution building in Nepal 381

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