Let Wisdom Dawn On Parties

Yuba Nath Lamsal

With the deadline for the promulgation of a new constitution drawing closer, political parties are in hectic consultations to settle the contentious issues and expedite the political process on war footing. We have only a fortnight left for the promulgation of a new constitution for which the election was held four years ago. The compulsion to complete this process has arisen because of the verdict of the Supreme Court that has legally barred the political parties and Legislature-Parliament to further extend the life of the Constituent Assembly (CA).

The verdict of the Supreme Court has stirred in the politico-legal circle. Two distinct sets of opinions and views have emerged which have their own logics and arguments. One set of opinion subscribes to the logic that constitution amendment is a sole prerogative of parliament, the space of which has been well defined in the constitution. The extension of the terms of the Constituent Assembly is a political decision to save the country from sliding into constitution crisis. The brake that the Supreme Court has applied on further extension of the Constituent Assembly may have been correct from moral point of view as parties failed to keep their promises and original spirit of the Interim Constitution, required the CA to complete the task of constitution writing within that period of two years. The extension of the CA was base don’t he doctrine of necessity. This school of thought, thus, opines that the Supreme Court decision was political rather than legal and constitutional.

There is a rival set of opinion which is equally powerful and logical. According to this school of thought, the Supreme Court’s decision was based on the doctrine of compulsion.  The inherent message of the Supreme Court verdict was that the people’s representatives must respect the spirit of the Constitution. Parliament definitely has the right to duly amend the constitution. But they have no moral authority to amend the constitution to cover up their failures. Since they could not produce a new constitution in two years, as per the constitution, they amended the constitution to lengthen the life of the Constituent Assembly. When they miserably failed to accomplish the job within the stipulated time as mandated by the Constitution and the people, what moral authority they have to keep on extending the term of Constituent Assembly? The Supreme Court verdict was a warning to the parties and the CA members that they cannot keep on extending the CA term for indefinite time just to ensure their perks.

Whatever the logics for and against the Supreme Court verdict, this has made the parties more serious. The parties and leaders are working with utmost urgency so that the political process, which had been stalled and deadlocked for sometime in the past. Some positive developments have definitely taken place regarding constitution writing and the peace process in recent weeks. The army integration was the most contentious issue that had consumed a long time and stirred up controversy. But this has now been resolved with decision to integrate over 3000 ex-Maoist combatants into the Nepal Army. The rest 15000-plus opted for voluntary retirement. Although the modality and approach taken on army integration has come under fire from the radical faction of the Maoists, the army integration issue has now been settled permanently. The other issue is the governance model. The Maoists had been demanding executive president to be directly elected from the people. The Nepali Congress remained adamant on its stance advocating parliamentary model in which the prime minister to be elected by parliament would hold executive power whereas the president would be a ceremonial one. The CPN-UML came up with executive prime minister to be directly elected by the people. This issue, too, seems to be resolved as political parties have almost agreed on a mixed model in which president and the prime minister would share executive powers. Similarly, the most vexing issue is the state restructuring. Constitutionally, Nepal is already a federal democratic republic. All political parties, except a couple of fringe ones, have agreed on federalism. But there is a debate and controversy on the number and model of federalism.  On this issue, too, parties seem to be closing their difference, which makes us optimistic that the constitution writing task would be progressed.

But voices of discord over timely constitution have come from within the political circle. Leaders in public speak of promulgating constitution by May 28 but in private they are still doubtful of accomplishing this job in a just period of fortnight. This voice of discord and doubt came from the person no other than the chairman of the Constitutional Committee of the Constituent Assembly Nilambar Acharya. In a newspaper report, Mr Acharya was quoted as saying that the promulgation of a new constitution by May 28 does not appear plausible. However, CA Chairman Subash Nembang appears to be optimistic as well as confident of bringing about at least a basic framework of the statute by May 28 pending some unresolved issues which are to be sorted out by the Legislature Parliament in future. The remarks of CA chairman Nembang imply that the parliament would continue to function even after May 28 when the Constituent Assembly would cease to exist. This is an indication that the parliament would settle the unsettled constitutional issues, which raises some serious moral, political and constitutional questions. In the first place, would it be morally and constitutionally correct for parliament to take up the issues that were not settled by the Constituent Assembly. Secondly, why election was held for Constituent Assembly when its function is to be done by parliament? In such an eventuality, the constitution promulgated through this process would not be different from that of previous constitutions and the question of writing the constitution by people’s elected representatives would remain unresolved. Thirdly, is there any guarantee that people would accept this type of constitution? What if the people rejected the constitution? The parties and their leaders must answer this question to the people.

It would still be hypothesis to construct the views about the possibility of not writing the constitution by May 28. If parties work seriously and sincerely rising above their partisan line and agendas, the constitution can still be written and promulgated within this short deadline. If parties fail to produce the constitution through rightful procedure, they must give convincing answer to the people for wasting four precious years and country’s scarce resources. In such an eventuality, it would be better to opt for a fresh mandate to write the constitution instead of producing the statute through undue process. That would be more democratic and convincing.

The delay in writing the constitution has created many complications in the country. The inability of the political forces to arrive at a certain conclusion at the earliest on the model of federalism has divided the people. The problem is not with the principle of federalism but its model. This used to be a debate in academic and political level and circle in the past. But the polemics on federal model has recently been reflected on the streets.  There are three kinds of views being expressed on the streets, media and academic and political debate and discourse. Accordingly the parties are also divided on this issue. The first one is the federal model based on ethnic identity with priority right to the dominant ethnic community in the provincial states. The ethnic nationalities and indigenous groups are demanding this type of federal model. According to them, this type of federal model ensures rights to the hitherto discriminated, excluded and exploited people. The second type of view advocates creation of federal states on the basis of economic viability, administrative accessibility and infrastructural development. This school of thought is being voiced by Brahmins, Chhetris, dalits (oppressed communities) and some other groups who, combined together, claim to constitute more than 45 per cent population of the country. The other type of views has come from Madhesi groups, who are least concerned whether the federal model is ethnicity-based or viability based. The Madhesis’ only concern and demand is for one single Madhes state in the entire Terai.

Street protests, strikes and processions of different kinds have been staged for and against different ethnic model. This has been a regular phenomenon in recent days. Some incidents of street clash between these groups have also been reported. If this situation further lingers on, the conflict and confrontation among different ethnic groups may flare up which may turn into communal violence. Thus, the political parties, taking into this situation into serious account, must arrive at an early solution. If parties fail to do so, another round of conflict is likely to erupt. The parties and leaders, thus, are expected to act wisely with more flexibility for the country and the people. We can only wish: May wisdom dawn on parties and their leaders.