Will to Power

[A guest post by Semanta Dahal on the ongoing saga of constitution-drafting in Nepal. Semanta can be contacted at [email protected]]

A new constitution for Nepal seems more distant than ever. After much deliberations among the political parties, the election to the Constituent Assembly (CA) was finally held in April 2008. This heralded a new dawn of optimism among us, which, however was shattered when the CA, mired in deep malaise, was suddenly killed before the deadline set by the Supreme Court. Each political party—the Maoists, NC, CPN-UML and Madhesi Morchas—have presented their alibi for the death of the CA. Amid this, a second election to the CA was also declared for November 22 by  PM Baburam Bhattarai. The  NC and CPN-UML are against a second election to the CA. Both have firmly opposed what they see as an unconstitutional declaration and have raised concerns about the possibility of holding a free and fair election under a Maoist-led government. In this stalemate, consensus among the major political parties might seem like the only sane option. But steps to execute this political consensus will require extra-constitutional measures if notunconstitutional ones.

Interim Constitution

The framers of the Interim Constitution of Nepal faced a deep paradox when they were entrusted with the duty to draft a constitution to effectuate the will of the Nepali people to frame a constitution through a CA. Because of an unclear mandate the drafters were unsure whether to write  only a statute of transition or a comprehensive statute for governance. When it was finally promulgated it received fair share of criticism for being an organic law suitable for a longer-term goal of a stable state rather than a transitional document. This oft-critiqued feature of the Interim Constitution has however proved to be a boon for the nation, preventing the country from sinking into a governance void.

But on part of completing its transitional task, it has become equally doubtful whether the bridge-gap constitution will deliver a final constitution to us. Although the framers of the IC intensely negotiated the issues of inclusiveness, modalities of CA elections, state restructuring and fate of monarchy, they however unequivocally agreed to allow the CA to mirror the role of the legislature-parliament. Cost-saving, efficiency and minimum legitimacy of the legislature-parliament in comparison to t he CA were the primary reasons behind the agreement. The twinning of the roles of the CA and legislature-parliament not only affected the constitution-making process but has left us now with a powerful executive without a parliament to limit it.

Because the drafters of Interim Constitution did not sufficiently debate the twinning of the roles of CA and legislature-parliament, they failed to preempt the demise of the CA and its implications. If only, akin to the South African Interim Constitution, the members had agreed to give more importance to the parliament and allowed it to sit as a Constituent Assembly, and not the other way around, the present scenario would perhaps be different altogether. However there is no point mulling over the mistakes made in the past. The drafters have valid justification though: the mandate as demonstrated by the public will was election to CA and only the CA.  But lessons can be learnt from past mistakes and if the next election is to be held it should be to a parliament, which can have a dual role to sit as the Constituent Assembly for drafting, preparing and adopting a new constitutional text. This might go against the Supreme Court’s judgment, but it can be argued that this parliamentary election is ipso facto (by inevitability) an election to the Constituent Assembly.

Constitutional hurdles

Constitutions can be amended legislatively by acts of parliament and to a limited extent judicially by court interpretations. But constitutional amendments through ordinances are unprecedented. The alternatives floating among political parties—revival of CA, second election to CA, instead an election to parliament, ratification by an elected parliament a constitutional text prepared by constitution drafting commission, adoption by referendum of constitutional text prepared by an expert committee—require invocation of the Interim Constitution’s provisions relating to “power to remove difficulties”. Article 158 reposes the power to remove difficulties “in connection with the implementation of [the] constitution” upon the President who is supposed to act only on the recommendation of the council of ministers.

A similar provision was found in the Constitution of the Kingdom of Nepal and was destructively used by ex-king Gyanendra. In it, however under Article 127, the entire power was vested solely on the king. The Supreme Court had the opportunity to interpret “power to remove difficulties”, when it was exercised by king Gyanendra in the seminal case of Rajeev Parajuli v Royal Commission of Corruption (2006). In the stated case, the establishment of the Royal Commission of Corruption was under challenge and was declared unconstitutional. Speaking for the bench, Justice Min Bahadur Raymajhi observed that the objective and purpose of “power to remove difficulties” under the constitution is only for enabling the implementation of any constitutional provision facing obstacles in application. Further it was held that it can only be exercised within limits prescribed by the constitution and cannot be resorted to for changing the constitutional mechanism altogether.

Thus, any exercise of power under Article 158 of the Interim Constitution by the President and the council of ministers can come under Supreme Court’s scrutiny. It may only clear the Supreme Court’s examination if it emanates from broader political consensus and is supported by larger public will.

(First published in The Kathmandu Post)