No way ahead sans a level of political understanding
In the aftermath of the dissolution of the Constituent Assembly on May 27 without a new constitution, various options have been floated to take the constitutional process ahead. Among them are reinstatement of the dissolved CA, election of new CA and election of new parliament that will function as CA for a time being. Meanwhile, the inter-party bitterness resulting from CA’s failure continues to mar trust-building efforts. Republica’s Biswas Baral talked to former Chairman of the Constituent Assembly Subas Chandra Nembang about the causes behind the CA’s demise, the legal ground for new polls and the ways to end the current political and constitutional crisis.
Let us start with the dissolution of the Constituent Assembly. When we talked to you just 20 days before the May 27 constitution deadline, you were confident there was going to be a constitution. As someone closely involved in constitution-making, what do you think went wrong?
I was hopeful because I was closely monitoring inter-party dialogues. The CA members had worked hard to prepare the groundwork for the promulgation of the constitution by May 27. If the political parties had stepped on that ground, a timely constitution was very likely. Indeed, on May 15, the political parties had come to agreements on core issues. Thus my optimism was not unfounded. Unfortunately, the May 15 agreement soon broke down. But efforts for some kind of agreement continued right until the D-day. Even on May 27, the parties had assured me they would be able to work out some solution. But when the expected agreement didn’t materialize, the CA was dissolved without promulgating a constitution.
I had even presented alternatives. In one, I had proposed that a constitution be promulgated by incorporating the issues that had already been settled, while the few remaining ones could be decided in the future by a modified parliament. All parties had expressed their support for this proposal. But at the last minute, they declined to accept it as well.
What happened on May 27?
I can just tell you that the political parties could not come to an agreement. The May 15 agreement broke down on the issue of state restructuring. On May 27 too, the same issue led to the CA’s demise. There were rumors in the media that the parties had come to tentative agreement on this issue early on May 27. But by the time they approached me in Singadurbar, the agreement had broken down.
A section of former lawmakers have said that your proposal of truncated constitution which left aside some important issues to be decided by a modified parliament made parties less willing to compromise immediately. How do you respond to this charge?
This is yet another hypothesis among the many that have cropped up regarding CA’s dissolution. My proposal has precedents right around the world, most notably in Belgium. I had said that the parties should invest all their efforts in constitution making. In the process, if they were able to come to agreements on most issues, and only a few contentious issues remained, it made sense to promulgate a constitution with the agreements at hand rather than ditch the whole process over a few points of disagreements. If such a constitution could be promulgated on May 27, my idea was that the modified parliament, which would have the same lawmakers, could settle the remaining issues. You tell me what is wrong with this line of belief.
But isn’t it possible that the parties took it a little easy after you gave them some breathing space?
If we had been able to promulgate a constitution on May 27, all the positive developments since 2006 could have been consolidated. Now you can see what happened when, instead of agreeing to my proposal, the prime minister announced new polls. This has now put the country into a situation of total constitutional vacuum. Compared to what I had proposed, isn’t this a far more stupid option?
Some also believe you failed in your duty by not calling the CA into session on the night of May 27.
The Constituent Assembly, according to its regulation, does not sit without any ‘business’. Second, I was in no position to summon the CA into session without the political parties first coming to agreements on important issues. Another point is that the government had declared new elections well before the CA’s midnight deadline. Thus the problem was not my failure to convene a CA, but lack of political consensus on important issues.
As someone from the legal field, how did you see Prime Minister Baburam Bhattarai’s announcement of new CA polls even before the clock had struck 12 on May 27?
I had expressed my reservation with this option well before May 27. And when I realized that the room for consensus was narrowing, I had said on May 27 that election could be an option. But when you talk of elections, there are both constitutional and political issues at play. On the political front, I asked them how they would go to the people with the proposal of another CA? The situation on May 27 was that there were agreements on most issues with disagreements on only a few issues. If we failed to promulgate a constitution from this advantageous position, arrived at after the expenditure of considerable time and money, how could they go to the people asking for another CA? I had cautioned the major parties that they think about this option long and hard and if they had to follow this course, they do so through broad political consensus and amendment of the interim constitution. This would have solved both political and constitutional problems.
On the legal front, I had told them they could not go for CA polls on the basis of the Supreme Court’s decision ruling out further extension. But even the apex court decision gave the government the room to carry out “essential tasks” vis-à-vis a new constitution, which meant that elections were possible if the legal hurdles could be cleared. The situation is, as the interim constitution does not provision for new CA polls, the document has to be amended many times. On the days leading up to May 27, I had repeatedly called the legislature-parliament into session with a view to finding solutions through that route. If the government had forwarded an amendment bill to interim constitution and if the bill had been passed, it would have cleared the hurdle for another CA poll. Initially, the major parties had accepted this proposal, but in the end, it too was rejected.
Before May 27 Nepali Congress and CPN-UML had vehemently opposed any extension of Constituent Assembly. But now, the leaderships of the two parties seem open to the option of CA’s reinstatement. Is their demand legally sound?
This is the time when we have dismantled due process. The interim constitution envisions a constitution through a Constituent Assembly. It doesn’t envision a scenario where the elected Constituent Assembly has to be dissolved without promulgating a constitution. I had warned the parties that if there was no constitution by May 27, it would create a dangerous constitutional vacuum at a time when the country was already going through a difficult transition. The interim constitution says that all the gains made so far in various democratic movements and revolutions will be consolidated by the constitution promulgated through Constituent Assembly. This constitution would replace the interim constitution. The interim constitution also clearly says that the work of the Constituent Assembly would be completed only when there is a constitution. Nowhere does the interim constitution mention what should be done if the elected CA is not able to come up with a constitution.
As no alternative will be in accordance with the interim constitution, there is no alternative to taking a political decision. But while making such a political decision, the parties have to remember that the interim constitution is still operational. Even though its soul might have died with the CA’s demise, its essence remains. Therefore the political decision has to step on the letter and spirit of the interim constitution. The political decision has to be such that the whole process can be brought back on track through that one decision. The decision, made by adhering to the provisions in the interim constitution as far as possible, will lay the foundation of consensus government, peace and constitution.
Are there any other alternative to break the impasse?
Some believe that the way out is through ordinances, but ordinances cannot be used to amend constitution. Others have advised the president to use his right to remove difficulties, but even that is not enough to amend the constitution. There is no alternative to making a political decision, for once, by establishing broad political consensus. Without consensus, the government will face political and constitutional hurdles every step of the way. This will take the country on the path of violence.
The CA could not come up with a constitution in four years. On what basis do people believe that a new CA will fare any better?
Like I said, all political parties have to keep in mind that the country couldn’t have a constitution even though agreements had been reached on most issues. If there was broad consensus on May 27, we would have had a constitution. The agreements made thus far have been arrived at though the expenditure of a lot of blood and sweat. We should not let this hard work go down the drain. The peace and constitution process must be completed by stepping on our achievements so far. For instance, what will happen if we go for new polls? Will the achievements so far be taken into consideration or will we be mired even deeper in the crisis? In order to devise a way out, we have to consider past agreements and experiences as well as the interim constitution. We should not underestimate the value of the interim constitution which played such a vital role in the management of the decade-long civil war. It is a major achievement of the political process starting 2005.
But won’t the same issues that led to CA’s dissolution be obstacles for the new CA as well?
Absolutely, they will. Therefore, if there is no political understand among the parties at one level, there will be big disagreements on either option, of reinstatement and new polls. We missed a new constitution by a whisker on May 27. If we are to take the process back to zero, the task will be that much harder. This was the reason I was among those in favor of outlining the bottom-line of the constitution in the interim constitution, as happened in South Africa. But people started questioning: Is it right to place such hurdles on the powers of a sovereign Constituent Assembly? Our proposal was dropped.