Excerpts:
Myrepublica.com: What will happen if the Constituent Assembly (CA) fails to promulgate the constitution by May 28? What will be the president’s role in that situation?
Bhimarjun Acharya: So far, about 40 countries have opted to write the new constitution through the CA. Most countries have set aside two to three years for that purpose. If we study the facts about all the countries that resorted to constitution-writing through the CA – from France, which was the first country to promulgate the constitution through the CA in 1789 to the last country, Bolivia, to do so in 2006 – we can see that these countries drafted their constitutions in one to three years. While studying their cases, we find two trends. Some countries have written constitutions within the stipulated timeframe. Some others have failed. They have extended the deadline. The cases of extension have been established as bad trends. For instance, the CA process was obstructed in Pakistan. The CA in Pakistan began working from August 1947 and it was dissolved in October 1954. They went for fresh elections. The CA process in Pakistan continued for nearly 10 years. That is a bad practice. In Bolivia, they set aside one year for the purpose. They also missed the deadline and extended the CA tenure. They are still facing problems. We should imbibe the best practices.
In Nepal, we followed exactly the model practiced in South Africa. We copied ditto the constitutional provision practiced by South Africa regarding the CA’s tenure. Article 64 of our interim constitution is the translation of Article 73 of the constitution of South Africa. They completed the task within the given timeline and promulgated the constitution in 1997.
There is a constitutional philosophy that says that the fixed mandate [given by the people] can’t be extended. Therefore, there is no possibility of extension of the CA’s term. There is confusion on what will happen if the constitution is not written within the two-year term. The constitution has nowhere envisaged that the CA and other institutions shall be automatically dissolved and all the power will thereafter be vested on the president. What I can say at present is that the provision of two-year term is non-amendable. If we fail to write the constitution by May 28, a question of legitimacy of CA and other related institutions will arise. The president can’t exercise the executive power because the interim constitution has defined his role as a ceremonial head of state, who can act only as per the advice of the council of ministers.
Myrepublica.com: You explained extending the fixed termed as bad practice. Then, how do you describe the past decisions to make amendments of the constitutional provisions to defer the dates of CA elections?
Acharya: Definitely, that should be taken as a very bad precedent. There is a provision that all the articles in this constitution can be amended and be nullified by two-thirds majority of the legislature-parliament. But it doesn’t mean that the two-thirds majority can do whatever they want to. There is a constitutional philosophy that there is an implied restriction on several issues, which are related to the country’s sovereignty, national interest and people’s mandate. For instance, can the two-thirds majority of the parliament make an announcement that our country would be merged with some other country? Certainly not.
Myrepublica.com: If the government goes to the president with an amendment proposal, then what will be the situation?
Acharya: This is a very complex question. A question of legitimacy will be raised as the CA in its capacity of legislature-parliament can’t extend the provision of fixed term mentioned in the constitution. Another serious and fundamental question will be raised once the parliament amends the constitution and proposes the president to endorse it. As the president is bound to endorse anything on the advice of the council of ministers, he has to do that. Seemingly, he has no authority to reject it. But, at the same time, he is also the protector of the constitution. In that capacity, he himself is bound and has to ensure that all others are bound by the constitution. Thus, the president has no right to reject the proposal but in the capacity of the protector and follower of the constitution, he can hold the bill for some time if it violates the constitutional parameters and the national interests. Though there is no provision in the interim constitution that allows him to consult the Supreme Court, he can use the power implicitly. Or, he can instruct the cabinet or the CA to come again by correcting the move as per the law. Still, the constitution can’t allow him to use active power.
The speaker has failed to perform his role effectively. One of the reasons behind the slow functioning of the Constituent Assembly is definitely the speaker. He should take the responsibility as the commander-in-chief of the House.
Myrepublica.com: Can the government amend the constitutional provision about the fixed term to avert any political crisis?
Acharya: There is no justification for amending the constitution by citing political crisis as an excuse. There is only one ground for the extension and that is a state of emergency. Annulment and amendment of the provision will be taken as misuse of the constitution.
Myrepublica.com: If the constitution is promulgated after the extension of the CA deadline, how will the statute be looked upon?
Acharya: The most serious question will be about the legitimacy. All the activities that take place without following the due process will be proved illegitimate. The only option left would be to justify the move politically. Sometimes, any extra-constitutional activity can be justified by the context and by the people’s consent. Otherwise, all the activities done in the extended period – be it a single day or year – will be illegitimate. Moreover, the legitimacy of the constitution will always be in question.
Some leaders are in perennial confusion about the provision of extension for six months. The article will be applicable only if there is a state of emergency in the country. The House must objectively justify that there is a serious threat to national security under at least one of the four conditions –war, foreign attack, armed insurgency and/or economic chaos – to enforce emergency. There is very little possibility to justify it. Therefore, a serious confusion is impending.
Myrepublica.com: There are also arguments from some quarters that the situation of confusion and the political scenario that have emerged in the recent days is paving the way for an army takeover. How do you analyze it?
Acharya: Constitutional doctrine doesn’t envisage an army takeover. Still, we have heard some arguments claiming that the failure of the political process would lead to either the president or the army taking over the reins of the country. It is true that the constitution has a provision of dissolution of the CA but it does not have any provision about the dissolution of the president’s institution. The presidency’s term will continue until a fresh election for the president is held under the new constitution. But that doesn’t mean that the president can assume all the power.
As far as the army takeover is concerned, that would be an extra-constitutional step and there is no legal ground for that. The deteriorating political situation may lead the country toward that but we can’t support it under the present constitutional parameter.
Myrepublica.com: Then what is the solution?
Acharya: The CA has exclusive authority and responsibility on the constitution-making process and it is exclusively autonomous for the purpose. Unfortunately, it has been made a puppet and subordinate of the political parties. Some political parties and their top leaders have prevailed over it. The CA chairman and 601 members of the CA should strictly follow the law. They can’t stop the constitution-writing process. As a commander-in-chief of the CA, the chairman is the final interpreter of the rules to run the CA. He can issue orders to remove any sort of obstruction. As the fixed term can’t be extended, the timeline should be strictly followed. There is no point in saying that they failed to finalize the constitution due to time constraints.
Myrepublica.com: Do you mean to say that the CA chairman is responsible for the slow pace of the constitution-drafting process?
Acharya: Sure, I have a comment on his role. If one holds a post of the state, you have to perform as per the capacity. The post is not given to you to please all nor is it to stage a drama. It seems that lately, he is trying to please everyone. I was personally involved in drafting the CA regulations. It has not envisaged even a second of obstruction in the proceedings of both the CA and legislature-parliament. Some are arguing that they can obstruct the parliament. That is wrong. All the obstructions are illegal. The only authority to remove such obstruction is with the speaker. This regulation has given an exclusive authority to the speaker and no one can raise any question over his interpretation and order. Not even in the court. He has failed to perform that role legally, effectively and sufficiently. Therefore, one of the reasons behind the slow functioning of the CA is definitely the speaker. He should take the responsibility as a commander-in-chief of the House.
Myrepublica.com: Do you see the possibility of drafting the new constitution by May 28?
Acharya: Certainly. There is 100 percent possibility. There are several examples in the world that show that constitutions have been drafted by the CA within three to four months. That is possible even in our country. For that, the speaker should strictly enforce the timeline. Also, it is meaningless to prolong discussions because one cannot expect to come up with a system of governance with perfect form and mechanism one fine morning. That takes time. Likewise, writing the constitution only after resolving all the contentious issues is impossible.
Myrepublica.com: What, according to you, is the constitutional way out to end the current political deadlock over the president’s move?
Acharya: First of all, this is not a genuine deadlock. It is very much a created one. It has been created with an intention to disrupt the constitution-making process. We are anyways going to resolve these issues permanently in the new constitution. There is no point to insist on it right now. It shows that the parties are not serious about making the constitution. If one thinks that the president has violated the constitution or the law, the only remedy is to bring an impeachment in the house against him. Raising a question on his action through the resolution motion in the House is to prove that he has an active role. If the parties do so, it will pave the way for him to take up active roles after the CA’s deadline expires. This will backfire on the parties.
Myrepublica.com: Do you mean to say that the introduction of a resolution motion against the president in the House will eventually drag him toward discharging an active role?
Acharya: Yes, I think so. That will pave the way for that.
Myrepublica.com: Can this crisis be defused by introducing a resolution motion against the current government that endorsed the president’s decision to revoke the former government’s decision to sack the erstwhile army chief?
Acharya: Yes, that can be done. Likewise, in the case of the president, we can do it with perspective effect as a policy matter and a commitment can be made to do some policy arrangement in the new constitution and in the new system.
Related story
Manchester City's ban from European football overturned - CAS
