After completing the original two years’ timeline, the Constituent Assembly was extended up to four years to complete the constitution. Further extension was prevented by the Supreme Court, which asserted that the CA had outlived the mandated tenure. Differences between political parties on some of the constitutional issues stood in the way of its completion. Despite broad agreement on elements like democracy, inclusiveness, republic and the federal structure, no prior agreement was reached on their specific character.
Problems started arising immediately after the start of the CA work in view of the diametrically opposed backgrounds of the Maoists on one hand which believed in the establishment of ‘People’s Republic’ and the other liberal parties with parliamentary background on the other. The rising assertiveness of Madhes-based parties and other ethnic groups were other important factors whose interests and concerns also had to be addressed.
While most issues were largely resolved towards the end, main differences with respect to the form of government and the federal structure remained. Nepali Congress stood for a parliamentary constitution, as opposed to the presidential system proposed by the Maoists. As a compromise, NC was ready to reconcile on an untested mixed system with a directly elected president and parliament-elected executive Prime Minister along the French or Finnish model, if the other side showed flexibility on the nature of federal structure. The last minute deadlock was over seemingly minor issues—the number of federal provinces and their nomenclature.
LAST MINUTE EFFORT
To save the CA from its disgraceful end, Nepali Congress together with CPN-UML made a last ditch attempt, suggesting that a constitution based on agreed provisions be announced, leaving some unresolved issues for the subsequent parliament to decide. The House Speaker favored this approach, because this could have protected the constitutional process. But the ruling coalition rejected this option. Then one more alternative was proposed by the Speaker with the consent of other parties in the wee hours of the fateful day. That was to amend the constitution to pave the way for holding another CA election within six months and keep the parliament alive for legislative functions.
A constitution amendment bill was drafted accordingly. But the ruling coalition did not agree, acting purely in self interest. If they had agreed that would have meant the Prime Minister’s resignation in accordance with the five-point deal between the four major political parties/groupings few weeks before. In case of non-resignation, a no-confidence motion would have been passed by the House, as the Mohan Baidya-led faction had committed support for any such motion by the opposition parties.
With CA’s death, Nepal’s constitutional process also broke down. The present interim constitution does not envisage a situation without a functioning legislature at any time. With the CA’s dissolution, the parliament ceased to exist. Under the constitution, the CA has dual function of constitution drafting and that of a legislative body. If the CA had delivered a constitution, the body could have continued as parliament until the next election. The constitution makers did not foresee the CA failing in its primary task of constitution making. But when the CA did fail to draft a constitution, it lost its legitimacy to remain even as a legislative body. Parliamentary membership is one of the prerequisites to be the PM.
Therefore, in parliament’s demise and concomitant loss of his membership, Baburam Bhattarai was automatically disqualified as PM. The president, therefore, declared his status as caretaker. The country is now without a parliament and an executive Prime Minister. Positions in various constitutional bodies including the Supreme Court, the Election Commission, the Public Service Commission and the CIAA, the anti-graft body, are largely vacant in the absence of appointment authority from the executive and the parliament.
The issue of federalization is the most difficult and debated issue in constitution making. While all major parties are committed to federal structure, there are differences on its exact character. The basis for the country’s division and deconstruction has become an emotive issue. The first point of dispute is whether federalization should be based on ethnic deconstruction or economic viability. The CA report emphasizes identity and capacity elements as the basis of division. Identity refers to elements including ethnicity, geography and historical continuity. The ruling coalition is committed to ethnic division, ignoring other considerations like administrative convenience and economic logic, which will eventually raise the number of provinces to an unsustainable level. The viability argument put forward by NC, UML and others will limit the number to a manageable six or seven.
The second question is whether the norm for division should generally be applied uniformly, or with discrimination between hills and Tarai, particularly on ethnic issue. NC and other parties favor uniform application with emphasis on economic viability, demographic composition and administrative convenience. The ruling coalition favors ethnicity as the basis for division in the hills, while for the Tarai, the principle of one or two Madhesh will apply.
The third point relates to the question of ecological exclusivity while forming provinces. The ruling coalition stands for exclusive Madhesh and exclusive hill provinces. Opposition parties do not accept this principle, particularly for places like the far-west and east where hill-tarai interdependence and complementarities are more intense than anywhere else; and the demographic character is completely different.
The fourth difference lies in the empowerment of local bodies. NC in particular strongly believes that there must be constitutional guarantees on the power of the local government which cannot be encroached by provincial governments. The ruling parties are noncommittal on this. The last difference relates to naming of provinces. The ruling coalition proposed to identify the provinces with one ethnic name, while the opposition parties wanted multiethnic or common names and symbols. In the last hour, it was agreed that the job of exact delimitation of provinces will be left to future commission, but the differences over the number and nomenclature remained, which eventually led to CA’s demise.
The Maoists have made no secret of their ultimate goal of state capture and that they are using the current situation to create needed support base.
The Maoists have made no secret of their ultimate aim of capturing state power and that they are using the current situation to create the needed support base. They openly admit that Prachanda’s resignation over the CoAS Katuwal issue was a mistake and they will not give up power easily this time. The unexpected dissolution of CA was clearly an exercise towards capturing state power. The Madhesi Front has been an accomplice in their design purely for selfish reasons. Faced with several splits in all Madhesh-based parties, those in power think that continued attachment to power gives them the advantage of using and misusing the authority to strengthen their political base. The clear objective is unrestrained use of state authority without checks and controls of parliament and its committees.
The PM thinks he is all powerful now, as there is no clear constitutional provision to remove him. In the last three months since the CA’s dissolution, the Maoists have been successful in making inroads in the civil service, by making some key secretarial appointments which could have long-term ramifications in civil service, making shady deals on major projects and indulging in corrupt practices to enrich party coffers, distributing massive amount of state funds to their cadres in the name of self-employment schemes and so on.
This is the first of a two-part article. The second part will be published tomorrow