Thursday´s Supreme Court verdict foreclosing any further extension of the Constituent Assembly’s term is being analyzed from many angles. A section of intelligentsia, legal community and political establishment has hailed the no-extension verdict. Their logic is that since the Supreme Court had already ruled out any further extension back in May, Thursday’s verdict merely reiterated the earlier stand. NC and UML supported it because in the final round of negotiations ahead of May 27 deadline, the two have maintained that the constitution should be completed by the deadline at all costs, even if it means setting aside the all-important issue of restructuring to be settled by a state restructuring panel set up by the ‘extended’ parliament post May 27. They also hold that coming up with a constitution is vital to regain people’s trust in the political class that has been steadily eroding in the last four years.
We believe the Supreme Court set a worrying precedent back in March by fettering a democratically elected body whose very rationale rested on it being able to give the country a viable constitution. We accept that the political parties wasted most of the last four years in petty power politics. For this, the political class deserves all the blame that has been heaped on them. But that is still no excuse for the judiciary, whose job is limited to interpreting laws, to muddle into the constitution making exercise of a sovereign CA. It is unclear how Thursday’s directive will in any way help the constitution making process, which is, considering the huge stakes involved, by necessity a slow and deliberative process. What SC’s latest verdict has done is given the political parties an easy pretext to hurry through vital negotiations to come up with a constitution, however flawed, by May 27.
In this mad rush, not only are vital steps like taking the draft constitution before the people for feedback being overlooked (thereby calling into question the legitimacy of the final document) but it has also given the political parties an excuse to push through the constitution without any meaningful give and take with vital stakeholders. One of the most defective aspects of the constitution making exercise so far has been the tendency of top political leaders to hammer out agreements within the confines of four walls, without taking into consideration the views of the broader constituencies, most importantly the historically marginalized groups.
The political parties are now likely to emerge with a document on May 27 whose legitimacy will be questioned from the day it is promulgated. Besides failing to take the marginalized and other dissenting forces into confidence, the process will also have subverted vital steps like feedback on draft constitution. For the last month or so we have witnessed disturbing scenes of violence, often pitting one community against the other. The situation is so volatile that even the slightest provocation could invite another prolonged conflagration. In this situation, pushing through a half-baked constitution that conveniently sidesteps the issue of building of an inclusive society is likely to fuel further resentments among disgruntled forces.
Those against an extension argue it is still possible to sort out most of the vital issues except state restructuring by May 27. Apparently, all the remaining issues will be settled by the future ‘extended’ parliament and a state restructuring body it will set up. Why are the political parties trying to dupe people by arguing for an extended parliament, which will, if it is to settle vital constitutional issues, be a CA in all but name? This is a dubious tactic of the political class to convince people that they have kept their side of the bargain by coming up with a constitution by the designated date. We also believe that settlement of vital issues on constitution, not through a full-strength CA, but its parliamentary cousin whose role had been envisioned as a ‘shadow’ of CA proper by the interim constitution, will undermine the legitimacy of the document thus arrived at. It makes no sense for the treasury to continue to be burdened by a jumbo-601-memer parliament. Instead, wouldn’t it have made more sense to retain the CA and work at solving outstanding issues through it?
The argument that a constitution is not set in stone, that its provisions can be amended by elected representatives, is all the more reason to tread with caution. Rather than draft a constitution in haste, leaving the document open to multiple, competing interpretations, a much better idea would have been to agree to one final extension. This would have given the country enough time to give proper hearing to the grievances of all agitating sides and incorporate their suggestions into the final document, thereby adding to the constitution’s credibility.
We should not forget that, ultimately, constitution making is a political process. In a functioning democracy, a legislature elected by sovereign people should have the final say on the nitty-gritty of the constitution. Amidst a wrenching transition, there is all the more reason for the judiciary to let people’s representatives carry out their business unhindered.
The backing of NC and UML for the SC verdict is all the more irresponsible because it leaves open the possibility of a political vacuum should the parties fail to come to an agreement by May 27. It is strange to see NC, which has been championing the cause of representative democracy for over six decades, be ready to dissolve the most inclusive (and arguably the most important) body of representatives in the country’s history.
Now that the possibility of any further extension has been ruled out, we hope the extended parliament can live up its expectation and be able to settle on a truly inclusive constitution befitting a federal republic that has so far promised so much but delivered so little for the overwhelming majority of Nepalis