KAMAL RAJ SIGDEL
With the deadline for the Constituent Assembly looming and parties getting deeply polarised, more and more Nepalis are asking: What if the
While many stress that it is still possible to draft the new constitution in the remaining five months if the parties come together, others suggest that it is time the parties sought common constitutional or political alternatives just in case they don’t.
Various interpretations are offered and scenarios analysed.
To some, the Interim Constitution has defined CA’s tenure, which will be “two years from the date of its first meeting,” there is no provision to extend the term -- except in case “the task of drafting the constitution is not completed due to the proclamation of a State of Emergency.”
Given the provision, the only legitimate alternative to securing a safe transition is to forge a new political understanding for a constitutional amendment, and this is where most of the constitutional experts seem to agree on. But opinions are highly divided in case the parties fail to generate a two-thirds majority in the CA for a constitutional amendment for term extension.
Nepal Bar Association Chairman Bishwo Kant Mainali says the president can’t be the saviour in case parties fail to either draft the new constitution or amend the existing one on time. “The parties cannot simply stay idle and say that the president will be there to handle the situation. If the CA dissolves, not only the government but all the institutions including the president, would be automatically stand dissolved, creating a state of complete statelessness.”
President’s legal advisor and senior advocate Surya Dhungel does not buy this argument, for “this interpretation fails to see the constitution in totality.”
“The Interim Constitution has guaranteed the president’s continuity until there is a new constitution in place,” argues Dhungel, pointing at Article 36 (c) on “Term of the president”, which states that “the president shall continue in office until the new constitution is promulgated by the CA.” He, however, also suggest that the best way would be to draft the constitution within the time.
Even when there is agreement over the president’s continuity after May 2010, there are sharp disagreements over whether the president can act as an alternative authority. The reason: Article 36 (c) speaks only of the president’s tenure and not of his authority. “Continuing tenure does not mean gaining executive power,” says Gobinda Sharma Bandi, a constitution expert, drawing up the instance in 2002 when Speaker Taranath Ranabhat continued to remain speaker even after the dissolution of the House. “The president cannot exercise power, and if the parties think of him as an alternative, that would be totally unconstitutional.” Bandi also suggest that the parties can amend the constitution through an ordinance if in case the Maoists continue to obstruct the House. “Amending the constitution through an ordinance would be undemocratic but still it will be legal and will be a better option than going for a presidential rule, which will be totally illegal.”
To many, arguments based on interpretations of the constitution alone are not the solution and the focus, according to this school of thought, should be on finding solutions within the given timeline.
Advocate Bipin Adhikari, an expert who subscribes to this school, says the only alternative the parties have at their disposal to avert the impending crisis is to go for a ‘framework constitution,” which contains the basic provisions agreed by all parties in the CA – should a “complete constitution” not come out on time.
“This issue is more political than legal,” says Adhikari. “Idea of framework constitution is an internally accepted way to handle any transitional phase.”
Proponents of this idea maintain that since there are only three more concept papers to be submitted the parties can easily adopt a “framework constitution” within the remaining time and continue to build on it later. There is no point, says Adhikari, in trying to find out ‘excuses’ for unconstitutional adventurism through “meticulous legal interpretation.”