Parties Exercising To Revive Constituent Assembly

Yuba Nath Lamsal

It seems that politics of Nepal is slowly but certainly going back to the square one. In other words, the state of politics is likely to go back to pre-May 28 status. All the developments have clearly indicated that political parties will be left with no option other than reviving the Constituent Assembly. The political parties seem to have virtually agreed for the revival of the Constitution in order to resolve the constitutional deadlock that has emerged in the absence of parliament.

The Constituent Assembly saw its demise without accomplishing its mandated job—writing a new constitution— for which it had been constituted through the popular election. The initial timeline of the CA for producing the constitution, as stated in the Interim Constitution, was two years. In the period of these two years, the Constituent Assembly did not even prepare groundwork for writing the constitution, let alone completing it. The priority of the key political players and stakeholders was directed towards something else rather than the main job for which they were elected. The political parties, instead, were caught up more in the power struggle. The Constituent Assembly members were more occupied with parliamentary activities like election for the prime minister, formation and change of the government and passing the bills. As a result, sufficient time could not be given to the debate and activities on issues concerning the constitution.

More importantly, the representatives who were elected or chosen to the CA were inexperienced on the nitty-gritty of constitution writing and parliamentary activities. It took two years for them to learn the basic parliamentary and constitution-writing procedures. By the time they learnt the entire procedure, the two-year period was over, which compelled the parties to agree on the extension of the term of the Constituent Assembly.

The real job of constitution writing started and progressed only during the extended period of the Constituent Assembly. The CA members could not fully concentrate on constitution writing even during this period. They had to be busy more for parliamentary affairs and activities. As a result, all the deadlines set for constitution writing were missed one after another and constitution writing job got unnecessarily delayed. Now it has been realized that the duel job of the Constituent Assembly was, to a large degree, responsible for the delay in constitution writing. Had the Constituent Assembly been entrusted with single job of constitution writing, it, most possibly, would have promulgated the new constitution. Based on this experience, many have now reached the conclusion that there should have been simultaneous election for both parliament and the Constituent Assembly. For that matter, the Constituent Assembly should have been composed of directly elected 240 members and the members elected through proportionate system should have been entrusted with parliamentary job or the vice versa. 

However, this alone was not sufficient. More important was the commitment and honesty of the political parties and their leaders, which seemed to be lacking. In the public rhetoric, leaders appeared committed to completing the constitution writing within the stipulated time. But, in private, they wanted to buy time and delay the constitution writing so that they might be able to incorporate their agenda and interests in the statute. To put simply and frankly, the parties and their leaders were not honest and sincere in their words and promises. The ill-intention is, therefore, the real culprit behind the entire political and constitutional fiasco that the country has witnessed at present.

The other aspect that was felt more strikingly is the highhandedness of the top leadership of three main political parties in general and the Nepali Congress and the CPN-UML in particular.  The Constituent Assembly was not allowed to work freely and independently because of the interference by top leadership of the three major parties from outside. Some of the influential and senior leaders of the Nepali Congress and CPN-UML had been defeated in the election but they constantly kept on poking nose and interfering in the affairs of the Constituent Assembly. In a way, the Constituent Assembly was made hostage of the top leadership of the three largest parties. The leaders would take decision in the dark rooms somewhere outside the Constituent Assembly and would impose in the Assembly which the CA members had to accept and approve without any question and qualms. This can be well evidenced by the helplessness of the CA members who had been yawning in the premises of the Constituent Assembly from early morning to the late night on May 28— the last day of the CA. They were just waiting desperately the diktats of their leaders who were holding closed door-meeting somewhere away from the Constituent Assembly in the name of forging consensus. The CA chair should have initiated the meeting and sought consensus and compromise on the unsettled issues on the floor of the Constituent Assembly, which could have helped to sort out the differences. Herein lies the fundamental flaw. The Constituent Assembly should have acted independently, for which the CA chair’s role could have been crucial and decisive. Unfortunately, the CA chair failed to protect the independence of the Constituent Assembly. This was a blunder on the part of the CA chair Subash Chandra Nembang, for which history will always remember him as a principal man responsible to fail and decapitate the Constituent Assembly.

The Constituent Assembly had completed more than 90 per cent work of the constitution. There had been dispute only on the issue of model of federalism. All other settled issues could have been formalized, if the meeting of the Constituent Assembly had been convened on its last day. However, the Constituent Assembly saw its demise without convening the meeting on that fateful day. In the absence of CA meeting on the last day, all the works already completed by the CA during the last four years were also got wasted.

With unbecoming demise of the Constituent Assembly, a new kind of crisis has crept into Nepal’s political arena. The government announced the fresh election for a new constituent assembly. But election plans were automatically cancelled as the Election Commission expressed its inability to hold the election in the absence of necessary constitutional and legal tools. Now we have neither the Constituent Assembly nor constitution. In the present situation fresh election also cannot be held because amendment of some election related provisions in the Interim Constitution is a must to facilitate the fresh election. But the amendment of the Interim Constitution can only be done by the Legislature-Parliament, which does not exist. Given this constitutional complexities on holding the election, the better option, from political and constitutional perspective, would be to revive the Constituent Assembly. This option may also face legal challenge mainly due to the Supreme Court verdict that had ruled against the extension of CA beyond May 28, 2012. This hurdle can be done away with through constitutional process by means of judicial review on the basis of doctrine of necessity. But any decision beyond constitutional and legal means would be counterproductive.

Some political parties are now demanding an all-party government in place of the present Baburam Bhattarai-led government. In the absence of parliament, there is no legal ground for the formation of another government, if we have to follow constitutional and legal procedures. The revival of the Constituent Assembly is the only alternative either for the change of the government or holding the fresh election.

There is, of course, one school of thought in Nepal that the Constituent Assembly has already failed and it would not be politically and morally correct to revive the failed Assembly. Moreover, according to them, there is no guarantee that the revived CA, which had already failed, would bring about any tangible solution. It is definitely true that CA had failed and it is natural on the part of the people to raise doubt over its competence to promulgate a new constitution even if it was revived. Their concern is definitely genuine. But we have no other legal alternative. Moreover, the Constituent Assembly is a body of representatives of the people who were elected on the tickets of different parties. The failure of Constituent Assembly means the failure of the political parties and their representatives. If we seek an alternative to the Constituent Assembly on the ground of its failure to deliver constitution, it would imply that alternative of political parties should also be sought. Political parties are the main actors of a democratic polity and alternative to political parties can never be sought. Seeking alternative to political parties would mean to seek authoritarian regime, which we can never imagine. By the same token, it would be politically and constitutionally incorrect and immoral to seek alternative to the Constituent Assembly, even if it had failed in its duty. CA is the only democratically elected body through which alone solution to the political crisis should be found. Once revived, the works completed on constitutional issues would be formalized and the rest unsettled issues would be left to either the transformed Legislature-Parliament or next parliament for which election can be held. In such a case, the country may not require another Constituent Assembly election and much baffling and time consuming exercise in the name of constitution making.