What everybody had feared has come to pass. The Constituent Assembly has died such a death that it cannot even play its other role, that of the legislature. Our leaders stand disgraced and the nation betrayed.
Four years ago, the country became a republic. The alliance of parties that had spearheaded the people’s movement promised a ‘New Nepal’ in which the multi-ethnic fabric of society would find dignity in a republic federal dispensation that would mainstream the marginalized and downtrodden communities. Four years down the line and after four extensions of the CA term, we find ourselves back to square one with fresh elections slated for November.
Had due process been followed, the new CA to be formed after the polls could have built upon the achievements of its predecessor. It could have used the lesson on the folly of handing over its jurisdiction to the political shenanigans of leaders. It could have dealt with the thorniest issue in the constitution drafting process, namely, federalism in a more mature way. Unfortunately, the events of May 27 have cast everything in doubt bringing with it not just political uncertainty but also a grave constitutional crisis.
In the first place, Prime Minister Babu Ram Bhattarai’s announcement of elections itself was unconstitutional for the Interim Constitution does not provision such an announcement. When the Supreme Court had, on November 25, ordered a full stop to any further extension of the CA term, it had also provided options. Fresh elections and referendum were two such alternatives to an extension of the CA tenure for the fifth time. Had the government understood that any of the solutions could be resorted to only through an amendment to the Interim Constitution for which it would have to take the route of the CA, which also doubled as parliament, the country would not have had to face the present crisis.
Prime Minister Bhattarai did not follow due process when he announced elections unilaterally. Neither the PM nor any of the political leaders involved in negotiations on that fateful day took the CA into confidence. It was, thus, speaking metaphorically, imprisoned and killed. Whether the motive was sheer temerity as the leaders of political parties had no achievement to share with the CA and could not inform about its dissolution; or malfeasance, Bhattarai’s move will always be suspect for it cannot be that he did not seek legal advice before making his move. As things stand now, without elections the country will not get a constitution and the elections just announced cannot be held if it is unconstitutional. Besides, the President as a constitutional head is not empowered to sack the PM, which means he cannot act unconstitutionally to set right the unconstitutional move of the Prime Minister. So, how do we get around this situation?
The only way lies with the so called residual power of the President, which means he can use his discretion to either allow the Bhattarai government to hold elections or call for the formation of an all party government to hold elections. But polarized as society has become in recent times, either of the choices will anger the other force. But choose, he will have to otherwise it will not be possible to make the necessary amendments to the Interim Constitution for elections to be possible.
The protests, shutdowns and violence that spread across the country prior to the May 27 deadline for the Constituent Assembly have simmered down. But let us not be deluded, for this quiet of the present is just that proverbial lull before the storm. It will only be a matter of time before the crisis blows up and the country finds itself in the grip of violence. Not that the political actors of Nepal are known for their sense of responsibility, but they ought to act to avert another disaster. They must come together for a unity government. That’s a compulsion.
After ten years of bloody insurgency, it took more than four years for the peace process to be completed. The last thing that the country needs at the moment is a relapse into another conflict situation. If our leaders still have not learnt their lesson well, if the state plunges into the abyss of strife once more, it will not be against just a single outfit — the Maoists—as on the previous occasion, but multiple ethnic forces all clamouring for their rightful place in the state. If the lust for power continues to drive our political leaders rather than the good of the country; if proper attention is not paid to the demands of emerging forces, if the leadership cannot handle the issue of federalism in a rational manner, the country could plunge headlong into chaos and disintegration.
The threat is very real and with each passing day it will only grow worse. Even with the warning writ large, if the vision of our leaders cannot go beyond political expediency and short term gains, if it’s only a matter of holding the reins of government without being accountable and responsible, then perhaps there is no sense in going through another electoral exercise for a new CA. May be it will be best to continue with and adopt the Interim Constitution and let it grow and evolve into the Constitution of the Federal Republic of Nepal by effecting the necessary amendments as we go along over time.
Singh is a researcher with
Centre for Research Excellence