Nepal In Unique Crisis

Yuba Nath Lamsal

Nepal has seen a unique situation in its political arena after the demise of the Constituent Assembly and declaration of the fresh election. A new kind of debate has surfaced in our academic and political circle. The subject of debate is the constitutionality and legality of the government’s decision to dissolve the constituent assembly and declare the fresh election.

Opinion is divided for and against the dissolution of the CA and declaration of election for a new constituent assembly. Those who are defending the decision of the government to go for a fresh election are of the view that the government was left with no viable alternative other than the election. However, the critics and opposition parties claim and argue that there were alternatives left but the government did not seek those options but declared election to prolong its life. Both sides have their own logics and counter logics, which are equally powerful.

The dissolution of the constituent assembly and declaration of the election are definitely subjects of legal and political debate. Everyone has the right to ask whether the dissolution of the Constituent Assembly was the right decision or there were other alternatives. Were all alternatives were sought to save the constituent assembly? Was the election the only alternative? These are some of the questions that are being raised from various quarters, which must be duly and logically replied by the government and the ruling parties to the best satisfaction of the people.

The debate in itself is not a bad idea. A healthy debate always leads to meaningful and logical conclusion on every issue. Thus, the debate on constitutionality, legality and political rationality of the dissolution of the CA and announcement of the fresh election cannot be dismissed as merely unnecessary political tug of war. Only debate enriches our experiences and constitutional exercises. It is also the right of the opposition parties to question legality and political rationality in the decision of the government. It is the duty of the government to prove that their decisions were politically and legally correct and justifiable.

Election is the best democratic exercise in democracy which enables people to participate in political process. The government has based this logic to justify the declaration of election. The government has claimed that the announcement of the election was made based on the verdict of the Supreme Court that has clearly ruled that if the Constituent Assembly failed to deliver the constitution within its constitutional deadline, fresh election would be better. The spirit of the Supreme Court was to check the indefinite extension of the life of the Constituent Assembly. The intention of the Supreme Court was not to fail the Constituent Assembly and go for fresh election.  By declaring election for another constituent assembly, all the exercises made during the four years since constituent assembly was formed have gone wasted lot of works had been accomplished on the constitutional issues except the ones related to federalism and state restructuring. But the declaration of election nullified all the works and achievements made during the four years concerning the constitution. These achievements and agreements should have been formally codified prior to opting for alternative approach on the issue concerning federalism and state restructuring. It was, thus, a mistake on the part of the political parties and the government not to institutionalize and formalize the issues that had already been settled in the constituent assembly.

In the first place, it was a grave mistake of the chairman of the Constituent Assembly.  Chairman was the custodian of the constituent assembly and it was his duty to save the image of the constituent assembly. The current image of the historic constituent assembly is very poor. First, the constituent assembly was huge with 601 members. People had not taken it very positively because of its huge number. It was taken as a white elephant for a small and resource strapped country like Nepal. However, people accepted it as a product of special circumstances with the hope that it would deliver the constitution in time. As the constituent assembly was the demand of Nepali people for more than six decades, people wanted this body to prove its worth. When the constituent assembly failed to produce a constitution in two years and its life was extended, people became slowly disillusioned with this body. The constituent assembly failed to function independently but became a tool of top leaders of three major parties, which caused people’s apathy towards this elected body.  Its unceremonial demise became even a big concern of Nepali people.

Since the beginning, the chairman Subash Nembang did not act as a guardian and leader of the Constituent Assembly. He simply proved himself to be pawn of top brass of the three major parties in their political game plan. As a result, the Constituent Assembly virtually became directionless right from the beginning simply because its chairman failed to provide a firm leadership and direction. The Constituent Assembly became a mere tool to implement the decisions made in the headquarters of the three major parties and their principal leaders dictated the function and decisions of the Constituent Assembly. There was a tendency to make decisions by a handful of leaders of three largest parties in the dark rooms somewhere outside the Constituent Assembly and the CA merely endorsed these decisions. This not only made the constituent assembly defunct but ultimately led its demise. The scene of the Constituent Assembly on May 28, 2012 is evident of the incompetence of the chairman Nembang to save the image of the CA and formalize its task accomplished during the last four years. The meeting of the CA had been scheduled at 11 am on that day but CA chairman did not even turn up in the venue of Constituent Assembly. Instead, he ran from one leader’s residence to others and kept CA members waiting till the end that facilitated the government to dissolve the constituent assembly. The CA chair should have initiated the meeting on time and formalized all the accomplished tasks concerning the constitution. It would have facilitated the promulgation of the new constitution and would have saved the image of the CA. Thus, the chairman Nembang is primarily responsible for CA failure. Although Nembang is trying to defend his move as a bid to build consensus among the parties on constitution and political deadlock, this is his lame excuse, which can never be justified by any means. If he was at all serious for building consensus, attempts should have been made within the Constituent Assembly but not outside. The attempt of seeking solution outside the constituent assembly was an insult to the people’s elected representatives and also to the Constituent Assembly.

The government announced the fresh election, which it says, is to respect the Supreme Court verdict. But the government did not appear to have duly consulted constitutional lawyers and experts before taking this decision. There are constitutional hurdles and complications to hold the CA election under the present circumstances because the Interim Constitution has not visualized the constituent assembly election more than once. Also there are some other constitutional and legal hurdles for the election, which should have been cleared before declaring election. Given these circumstances, the election is not likely to be held on the scheduled date.

The move taken by political parties after the demise of the Constituent Assembly are even more dangerous from constitutional and political point of view. The opposition parties are now provoking and instigating the ceremonial president to take political action to sack the present government and form an all-party government. If ceremonial president takes political move, it will set a bad precedent in Nepali politics which may reoccur in future that will prove disastrous for Nepali democracy. Thus, the formal way to seek solution of the problem would be revival of the Constituent Assembly and resolve all the unsettled issues and promulgate the constitution. It is now high time for the political parties not to waste time in unnecessary debate of seeking solution outside the formal and constitutional forum but focus on legal and constitutional ways to give the ways out of the present unique political crisis.