ANANTA RAJ LUITEL
The dissolution of the Constituent Assembly (CA) four years after its existence without drafting the Constitution has raised serious questions about re-electing it to draft a new Constitution.
Since PM Baburam Bhattarai has already declared elections for the new CA for November 22, serious questions have been raised as regards re-electing the CA with a strength of 601 lawmakers for a four-year period, because it is a matter directly related to tax, rights and sentiments of the people. As more than Rs 200 billion has already been spent in the process of the elections to the constitution drafting body before and after April 10, 2008, its existence in the last four years now is a matter of public debate in the light that our nation cannot afford similar expenditure to elect a body for another four-year term. However, the promulgation of a constitution is significant, but CA-centric politics cannot be undertaken repeatedly.
As per the Interim Constitution, 2007, it is not feasible to hold any kind of
election nor the parliamentary election— without amending the existing provisions of the Interim Constitution. The CA, which doubled up as parliament, was dissolved without amending the Constitution, and since Article 33 and 63 explicitly mention the CA election in 2008, it would be difficult to hold new elections without the relevant amendment in the Constitution.
Decrease in the size of the CA and tenure would be against the Interim Constitution, because the number of the members of the CA—first past the post 240, proportional representation 335 and nomination by the Cabinet 26—has clearly been mentioned in the Constitution which has remained as the Constitutional provision. So, seeking a way to hold a small body of parliament with the authority to complete the constitution making will be the suitable way out of the present transition when the country needs amending the Constitution.
As the CA was dissolved without preparations for the new election, it will face constitutional and political impasse, indicating the entire failure of the Interim Constitution which had introduced the republican set up in the country by abolishing the constitutional monarchy. The major thing behind the failure of the CA was that not a single major party had owned the CA even though they had accepted the poll result even after UCPN Maoist had forced the voters to favor them at gunpoint. The Nepali Congress and CPN-UML were bound to accept the election results, because they had already pronounced the elections were held peacefully, and they wanted to bring the Maoists into mainstream politics at any cost, rather than questioning the impartiality of the election.
Consequently, the parties were always engaged in power struggle in forming and dissolving the governments, and without sorting out the basic philosophical questions there was no guarantee of drafting the Constitution. Since the Maoists were not ready
to compromise with a
parliamentary system, the NC and UML compromised for a communist Constitution as wished by the Maoists, under which the Maoists did not want to see even an independent judiciary.
The dissolution of the CA without preparations to go for fresh polls was apparent to face the constitutional deadlock because an election to the CA as per the mere wish of the PM was to create a serious constitutional deadlock. The government and parliament had not made any preparation before the expiry of the CA as it was not easy to choose any option—either to go for election or reinstate the old CA.
With the demise of the CA, when the Prime Minister become a caretaker, the post of the President, which is also a part of the Constitution, has the same destination. In fact, transferring the power to the President in the name of removing constitutional difficulties as per Article 158 may create another disaster in the country if there is no consensus among the parties, because the Head of the State might turn into a tyrant like deposed King Gyanendra who had also begun exercising similar power as per Article 127 of the 1990 Constitution. Since the Presidential order under Article 158 needs to be endorsed by the parliament within a month, it is debatable whether it is appropriate to exercise it in the current situation.
The existing Constitution has adopted the culture of consensus in state affairs and the PM does not have sole prime ministerial authority like in the normal phase to take any major decision. So, without consensus, it seems impossible to hold elections, and there is a need to reach consensus in amending the Constitution and reinstating the CA.
If the government forges consensus among the major parties for elections, it is certain that the coming parliamentary elections will be successful and popular, otherwise, holding CA election without consensus among the political parties will face the same fate as the municipal elections held by the deposed king Gyanendra in 2006, just a year before the people’s movement in 2005/06. In fact, holding CA election is not similar to the elections to the parliament where the PM goes for fresh mandate if he fails to implement his agendas.