A lot of ink has already been spent on discussing, debating, defending and advocating the constitutionality of the declaration of the second CA election and alternatives to that election. Politicians and lawyers always, and with characteristic ease, point out provisions in the interim constitution in favor of one side of the argument while those same views are then easily rebutted with another provision in the same constitution.
One recent and prominent example being the debate surrounding the constitutionality of presenting a full budget by the caretaker government of PM Bhattarai in the form of ordinances (the Supreme Court’s order also contributed to such disparate interpretation of the constitution in this case). The government, however, has now agreed to the opposition demand to table a ‘one-third’ budget, but not before the constitutionality of the situation was discussed ad nauseam.
Perhaps, the failure of the CA to draft the constitution has contributed to the present and deepening constitutional uncertainty. Part of the problem stems from the fact that lawyers, constitutional law scholars, and politicians have failed to read the constitution as truly objective and neutral individuals. Reading the constitution through the lens of party ideology and self-interest has resulted in disparate interpretations of the constitution and has contributed to this current ambiguity The best example of such self-serving interpretation can be found in the much vaunted and clichéd requirement of the interim constitution - ‘political consensus’.
The present appeal for a consensus by opposition parties is limited only to the formation of a new government that would, necessarily, include them. This consensus has no additional purpose. For opposition parties, a national unity consensus government is the only constitutional way out from the present deadlock. However, such singular focus on forming the government points towards their failure to understand a number of critical issues. Aimlessly calling for a consensus has obvious constitutional and political risks, including petty power struggles and turning government formation and dissolution into a game of ping-pong.
The current efforts to forge a political consensus are short-sighted and not aimed at addressing deeper and more pressing issues.
But in addition to that, the very ‘consensus is constitutional’ argument of political parties might just boomerang. Political parties do not acknowledge, or perhaps have deliberately chosen to ignore, the many constitutional provisions that could go against their interests. One such provision relates to the formation of a new government. Even with political consensus, the interim constitution necessitates that the prime ministerial candidate be a member of the legislative Parliament. However, it is not possible - even for a consensus government - to present anyone who is a member of Parliament, since the Parliament does not exist at all.
Therefore, if this is a debate about adherence to the constitution and political parties are against the present Bhattarai government for constitutional reasons, the arguments against a consensus government will be stronger than those against the current government and the proposed CA election. But it should not be construed that the present government, which is full of contradictions and a source of political polarization, can have its own way. The Bhattarai government is a hindrance to the conclusion of the constitutional transformation of Nepal. However, it is not the biggest hindrance. The greatest hindrance is the ultimate aimlessness of the vain effort to forge a consensus.
That aimlessness of the present efforts to forge a consensus, in turn, is mainly due to two factors. First, political parties have no plan or strategy beyond forming a new government. They have no idea how to usher in the transformation we all deserve. They are clueless about the best course to manage the present transition and to ensure a widely acceptable and truly democratic constitution. The proposed consensus is, thus, aimless as it has a myopic understanding that is yet to have any aim beyond a consensus government. Second, political parties have failed to realize that the process and rule they agreed upon for this transformation - the interim constitution - is now unable to mediate the transformation process.
Despite constitutional fiction to this effect that the Supreme Court may devise and as recently suggested by a former chief justice and few constitutional lawyers, the interim constitution cannot be of any assistance or solution anymore. In addition, as the Supreme Court also noted in its last decision on the matter regarding extending the CA’s deadline, the solution is beyond the realm of the apex court.
After May 29, the situation is such that no matter what is done, it will be unconstitutional in some way. What then, is the way out? Political parties will perhaps be quick to propose political decisions based on consensus among themselves. However, that is futile for the following reasons. First, it has been proved that such political consensus will be lead to mere continuation of self-serving politics incapable of delivering any meaningful solution. Second, in the absence of any constitutional regulation, such political decisions will be against the rule of law and they carry the risk of being undemocratic. Third, the people of Nepal have lost faith in the political parties’ ability, within the present setting, to transform our society into a functioning democracy.
Further, political consensus was one of the tools devised, in the context of an incomplete peace process, by the interim constitution, which as stated earlier, has now become incapable of ensuring democratic transformation. In addition, Nepal has entered a different transition of sorts since May 29. This transition is not the same as the transition post April 2007. The challenges and expectations of transformation have altered and in many respects have increased significantly and political dynamics have changed, as have relationships among the stakeholders. It is, therefore, time for the Nepali people to look for new meta rules (the broad normative standards) of democratic transformation. These new rules should be agreed upon by all stakeholders and not just the major political parties.
This new broad standard/principle of democratic transformation of Nepal, in turn, should have two aspects. First, it should affirm the broad aim of transforming Nepal into a democratic republic where all sections of Nepalis can remain united and their rights protected. The second aspect should be procedural. There must be new rules to govern the process of transformation. This is what should be the aim of people in Nepal today, and also the ultimate aim of consensus.
The author is a lawyer and is associated with the Law Students Society