CA Revival The Best Option

Yuba Nath Lamsal

After the demise of the Constituent Assembly without delivering a constitution, for which it had been formed through an election, a new kind of crisis has crept into Nepal’s political arena. The parties and political forces are busy in trading charges against one another for the setback and failure of the Constituent Assembly.  The failure of the constituent assembly to deliver the constitution is also an utter failure of the political parties and their leaders.

Now political parties are weighing different options and calculating their partisan gains. Parties have diverse opinions and versions for the outlet of the present grave political crisis that the country is facing at present. Now there are clearly three political options. One is the fresh election which has already been announced. The second is the revival of the Constituent Assembly and the third is the formation of the new government on the basis of national consensus. All these options have their own merit as well as risk. But the parties have to choose one option out of the three to steer the country out of the quagmire of grave political crisis.

The Prime Minister and the government opted for fresh election for new Constituent Assembly, the date of which has already been fixed. However, some problems have surfaced in holding the election on schedule. The problems include political, constitutional and technical. The Election Commission has sought amendments in constitutional provision related to electoral rolls and some other election related laws if the election is to be held on the announced date. The laws can be amended by the government through ordinances. But there are complications for the amendment of the constitutional provision. The constitution can only be amended by a two-thirds vote of parliament. Unfortunately, the parliament does not exist as it has already been dissolved to conduct the fresh election. In the absence of amendment of the constitutional provision, election cannot be held and constitution cannot be amended by any other institution other than parliament. But parliament is not in existence. This has created complication, which has made the election difficult, if not impossible. Similarly, the Interim Constitution has not visualized the election for the constituent assembly more than once. This issue has also to be settled and addressed if the election is to be held on schedule. Thirdly there is a political complication as all opposition parties are against the election and they have already announced that they would not take part in the election. Even if election was held, it may not have legitimacy if major opposition parties do not take part in it. The fourth complication is technical. The Election Commission will have been without commissioners because they are going to retire within a few months probably before the election date. Given all these factors and conditions, the election may not be feasible on the date already announced. Perhaps, the ruling parties, the Prime Minister and members of the cabinet have also realized the constitutional, political and technical complications for holding the election and they now seem to be flexible on other alternatives as well. Only recently, Prime Minister Dr Baburram Bhattarai has hinted that he would be willing to the option of revival of the Constituent Assembly if consensus among the political parties was forged.

The other option floated by opposition parties is the national unity government based on the consensus among all political forces. The consensus is easier said than done. Moreover seeking a consensus government out of parliament is equally unconstitutional. The Article 38 of the Interim Constitution has clearly stated that prime minister would be automatically relieved of his office if he or she ceases to be the member of the Legislature-Parliament. By invoking this article of the Interim Constitution, the President had reminded the Prime Minister Dr Baburam Bhattrai that his position has been reduced to a mere caretaker Prime Minister. The President, who invoked the Article 35, does not now have moral and constitutional authority to appoint someone who is not the member of Legislature-Parliament as the Prime Minister. By invoking this constitutional provision, the President has limited his own authority. This has created yet another constitutional complication. Prime Minister Dr Bhattarai has already been a caretaker one and another Prime Minister cannot be appointed in the present situation when there is no parliament. If the current prime minister was reduced to the status of caretaker one for not being the member of Legislature-Parliament, how can the President call for a national consensus government out of parliament. This would be yet another unconstitutional step.  There is also another irony in Nepal’s politics. Both the Prime Minister and the President were elected from the Legislature-Parliament by the same process. But Prime Minister ceases to remain in office once he/she loses the seat in the House whereas the President continues to remain in office in the same capacity even when the same body that elected him or her does not exist.

Given these constitutional, political and technical complications and problems, the best option, in the present political situation of the country, would be to revive the Constituent Assembly and thereby transforming it into parliament to be continued until the next parliament is formed. Once the Legislature-Parliament comes into existence, it would help to address constitutional complications that have surfaced now. The verdict of the Supreme Court will definitely create hurdle in reviving the Constituent Assembly. But an amicable solution to it also can be sought for which Supreme Court should be duly consulted and its approval sought.  In such a situation, the Apex Court is also expected to review its earlier decision to give the country a political outlet.

But parties are calculating their partisan gains out of these three available options. The government and the ruling parties have definitely their preference to the fresh election because they hope to take advantage of being in power. But their position has been shaky recently because of split in the ruling parties especially in the UCPN-Maoist and Madhesi Janadhikar Forum (Loktantrik). When the election was announced the UCPN-Maoist was not split and this party hoped to gain in the election because of its position on federalism. Two other principal rivals of the UCPN-Maoist namely the Nepali Congress and the CPN-UML were either not clear on the ethnicity-based federal model or were against it. The UCPN-Maoists had calculated that it would gain further in the janajati-dominated areas like mid-hills, valleys, Himalayan region and even in some parts of Terai where Madhesi ethnic and indigenous people have predominant population.  Once Terai used to be the vote bank of the Nepali Congress whereas hill ethnic population was the main power base of the UML. But Congress lost the popular base in Terai in the last election due to the emergence of Madhesi parties, whereas UCPN-Maoist vote bank was snatched away by the Maoists in the hills. The position of these two parties on federal model is likely to further weaken their support base as Madhesi, janjatis and indigenous people think that Congress and UML were against their rights and ethnic identity. Congress and UML are well aware of this situation and they are not willing to go to election immediately.

The position of the UCPN-Maoist is also shaky because of its split. Now the UCPN-Maoist is mulling over the revival of the Constituent Assembly. The rival of Constituent Assembly would definitely benefit the UCPN-Maoist. Firstly, it would further weaken and marginalize the newly formed Mohan Vaidya-led CPN-Maoist. Those who are members in the Constituent Assembly on UCPN-Maoist ticket would have to either remain in the mother party or lose parliamentary seat as the newly formed CPN-Maoist is not likely to muster required 40 per cent lawmakers to be recognized as a separate party in parliament. Given this legal provision, most of the members who had earlier deserted the party and joined the newly formed CPN-Maoist may return to the mother party. Secondly, its position as the largest party would be retained and its dominant role would continue in the government formation and in all aspects of the political process.

But the opposition parties neither want fresh election nor the revival of the Constituent Assembly. This is because of the state of confusion and dilemma on the part of opposition parties as well as their inferiority. In other countries, opposition parties demand fresh election but the government often hesitates to go for election. This is definitely strange scenario of Nepal’s political situation. The national consensus is a good thing provided it was raised with good intention. But in the present complicated political and against the background of parties’ political intrigue, the demand of round-table conference or the formation of the government based on the national consensus seems to be unconstitutional and undemocratic. Seeking solution out of parliament and the act of provoking the ceremonial president to interfere in the political process and governance would be a disaster in the long-run as it may ultimately invite yet another form of authoritarian tendency in Nepali politics.

Thus, the revival of the Constituent Assembly seems to be the best solution. Although the UCPN-Maoist may appear to be the apparent winner in the present situation, it should not be taken as a win or loss of any political party or group. The country would win if the CA was revived and all the remaining tasks of the constitution-making were completed. In this grave situation, the parties should not be confined to partisan interests and gains but think for the broader interest of the country.