Constituent assembly should ensure proportional representation: US scholar

A US constitutional expert has said that constituent assembly should necessarily ensure proportional representation in order to avoid what he called ‘majoritarian outcome’.

Speaking to media persons based in Kathmandu through videoconferencing from New York on Wednesday, Dr Andrew Arato, a constitutional expert and professor of history and sociology, said election to constituent assembly itself was not an automatic solution to the problem and that the risk of dominance of majority could not be ruled out if all sides were not included in the process.

“Constituent assembly is not an automatic solution. It can even exacerbate things and can also lead to majoritarian outcome,” he said, stressing that proportional representation – not the ‘Anglican’ way that is the dominant in the constitution-making practice in the South Asian region – is the best method.

Dr Arato was of the view that if the constituent assembly established by proportional representation would have positive reflection in the legislative assembly to be set up afterwards.

“The will of the people cannot be represented by single-stage process [of constitution making]. That’s why multi-stage process is important,” he told the media persons at the American Centre in Kathmandu.

Asked for his view on the question of turning the 1990’s constitution as interim constitution with some amendments or to draft a new interim statute, Dr Arato opined that amendment to this constitution to manage the interim period could not be of much help in the present situation and also because the upper chamber of the parliament is not functional as required by the present constitution

Stressing that strict guidelines are required to establish a constituent assembly, the Hungary-born US professor said hasty election process without broad political debate would not be fruitful.

“Everybody wants everything right now. Some want the republic and some want the monarchy to go now but participation is not like that. It’s a slow process. It takes time,” he said, adding, “There is no substitute for democratically elected constituent assembly.”

The process of constituent assembly, according to Dr Arato, should take six to nine months period to complete; otherwise it would become like ‘rubber-stamping’.

In constitutional term, he opined, Nepal is not so different from South Africa or Hungary where constitutions were framed through constituent assembly and lessons from outside could be helpful in the going.



4 thoughts on “Constituent assembly should ensure proportional representation: US scholar

  1. Thanks for this note. I was not however so certain that the 1990 constitution would not work, but only asked whether it would or not in light of it sprobable amendment rule which i did not have time to check. I said that I was not an expert on your country. But what I was sure of is that something like a Round Table format, as in the 12 opoint agreement between the Parties and the Maoists is needed to supplement, or even guide the work of the current parliament using the 1990 constitution (if adapatable). The reason: the restored assembly (excluding the Maoists, and elected a long time ago) would not have the legitimacy alone for the necessary procedural binding of the Constitutional Assembly.
    Andrew Arato
    New York

  2. 2. Ok. So this is working. As to proportional representation, I argued that it is the best formula for inclusion for a constitutional assembly, but may have problems for a future legislative assembly as to governability. But PR is a malleable system, compatible with governability if one makes adjustments. The problem in Nepal could be that a Constitutional Assembly might freeze the same rule that elected it. Since our discussion here is what I cooked up. 1. Elect a Constitutional Assembly by a national district PR. 2. Apply a five % cut-off rule for the simultaneous election of Constitutional Assembly (legislative). 3. Make the creation of any future electoral rule the province, by 2/3 majority of the Constitutional Assembly (legislative) or future legislative assemblies. This scheme maximizes inclusion for the Const Assembly that drafts the constitution, and governability for the legislature and the executive hopefully based on it.
    A. Arato

  3. During our discussion I was not aware of the 8 point agreement which I just noticed on the web. I would have been more useful to you, if I knew. What I like in the agreement is the joint drafting committee and the interim constitution. This is equivalent to the core of the best current formulas. What I dont like is 1. the very short time periof for drawing up the interim constitution and
    2. the dissolution of the existing parliament when the interim const is supposedly in force.
    !5 days are simply too short to produce a serious consensual document. And, with the dissolution of parliament the country gets close to a revolutionary vacuum in which the interim constitution will not bind the interim executive at all. Like in Iraq recently.

    I am affraid Nepal is being pushed closer to a revolutionary scenario, in which popular participation too will be illusory.
    I hope I am wrong. I still would recommend my electoral rule n previous note.
    Andrew Arato

  4. correction to above note 2 on electoral rule:

    there would be one election, and two assemblies would be elected. A larger one, the constituent assembly by straight PR, and a smaller one a constituent assembly (legislative) by PR using a 5% cut-off. All members of the smaller body would be members of the larger one, but not vice versa. Government would be based on the smaller body.
    The two may not have the same majority, or procedures. The larger body should decide by consensus. The smaller body, ordinarily, by majority rule.

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