Politicians and legal experts are claiming to have different ‘correct’ interpretations of the Interim Constitution on several points, including the nomination of 26 members to the Constituent Assembly, to make its total strength 601. Under the direct election, 240 have already been returned, and under the proportional representation system, 335 have been elected. Over whether the present or the new government should nominate the 26, there has been a sharp difference of opinion. Similarly, opinion is divided over whether this government or the next should table, in the first CA meeting, the proposal for immediate implementation of the declaration of republic passed by the Interim Legislature-Parliament and incorporated in the Interim Constitution. The Interim Constitution says that the first CA meeting will execute the republic declaration.
One group thinks that if the present Cabinet does not nominate the 26 members, the CA will be without its full numerical strength, and hence the CA cannot meet legally. Therefore, this group claims, the Koirala-led Cabinet should nominate the 26 members. The other group argues that as the people have elected the CA and the CA will elect a new government, only the new government will be authorised to decide on the nominated members. There might be a third group that does not see any difference whichever government makes the decision. But it does. By any stretch of logic, an outgoing government — rejected by the people, besides — cannot pick the new members, because it does not have the fresh mandate. The argument that sans the nominated members the CA cannot meet has no basis in precedent or logic. If any one member is unavailable for the first meet for any reason, could the CA not meet? Moreover, several people have won from two constituencies but none of them have more than one vote in the CA, does it mean therefore that the CA cannot meet?
Other reasons lie in the letter and spirit of the Interim Constitution, as well as in the purpose of the nominations. It had been originally stipulated in the Interim Constitution that the ‘interim Cabinet’ would make the nominations, but later it was amended to read simply that the ‘Cabinet’ would decide. That was a correction implying that the elected government would decide. In addition, the purpose of the nominations in an elected assembly is only to ensure that those communities not represented through the direct and proportional polls, as well as some prominent people, are represented in the CA. But a sad part of the debate is that it has gone on along partisan lines. Therefore, even lawyers and ‘constitutional experts’ sympathetic to the Nepali Congress and the CPN-UML echo their politicians’ voices, and those closer to the CPN-Maoist its voice, rather than on the basis of the merit of the case. On other issues thrown up by the CA election outcome, too, similar is the polarisation. Anyway, the Interim Constitution stipulates that these 26 people are to be chosen on the basis of political consensus. Perhaps this polarisation has to do more with who can get in more nominees – the numerical equations in the legislature will certainly have a say. And the equations have changed from the interim legislature to the CA.