Emerging post-conflict constitutional jurisprudence is not the same as normal constitutionalism that relies on constitutional supremacy, rule of law and the theory of limited government under democratic checks and balances. Management of a series of transitional legal framework adds complexities in the constitution and peace building process. Issues of ownership, public participation, social inclusion, social justice and restructuring of state under democratic form of government are not easy for a new constitution to accommodate as both process and substance demand a delicate balance.
The government may recommend the president, if all political parties agree, to declare ‘an emergency’ prior to May 28, 2010 on grounds outlined in Article 143, and help CA stretch its term up to six months through adoption of a resolution in the CA.
Implementation of the Comprehensive Peace Accord (CPA) with a priority to resolve combatants and army related matters prior to drafting of constitution needs special focus. Attempts are made in this article to draw attention of all concerned to the deadline of the constitution-making process limited by Interim Constitution to May 28, 2010.What happens if CA fails to provide new constitution in time? Let us look for the answers.
First, the term of the CA is two years from the date of its first meeting held on May 28, 2008, unless otherwise dissolved earlier. CA’s term may be extended for six months only by CA itself in the event that the task of drafting the constitution is not completed due to the proclamation of a State of Emergency (Article 64). Emergency cannot be imposed just to extend CA’s term. Hence from May 28, 2010 onwards, the CA would be automatically dissolved and CA members will be jobless. It is simply due to incompetency of the key political leaders and the 25 political parties represented in the CA to prepare the constitutional draft, the country will have to look for an extra-constitutional device in order to fill in the constitutional vacuum created after May 28, 2010.
Second, the country has no other constitutional options except producing the new constitution. Failure to write a constitution may impel the nation opt for extra-constitutional measures of governance. However, the consent of the president in his capacity as ‘protector and defender of the constitution’ will be essential for legitimizing such extra-constitutional moves. The continuity of the Interim Constitution will not be acceptable forever, and the country without CA, legislature-parliament and prime minster is bound to invite bigger crises.
Third, the government may recommend the president, if all political parties agree, to declare ‘an emergency’ prior to May 28, 2010 on grounds outlined in Article 143, and help CA stretch its term up to six months through adoption of a resolution in the CA. This power of extension of CA’s term is given to CA only by the Interim Constitution. The legislature parliament has no power to extend CA’s term through constitutional amendment of Article 63. This emergency period may then have to be utilized for drafting the constitutional text. Is the president bound to endorse an unconditional advice of the legislature parliament to extend the term of CA? Answer to this question can only be ‘political’, not ‘constitutional’.
Fourth, all other options to be adopted for getting a new legal framework would be unconstitutional/extra-constitutional, simply because any move to amend the Constitution to extend its ‘two year term’ will be against the spirit of the Constitution and ‘janaandolan’ . Moreover, the legislature has no power to increase its own life initially determined prior to the election. In the case of the Interim Constitution, the Article 64 has made it clear that it can only be dissolved earlier by a resolution. But from the date of its completion of two years term i.e. May 28, 2010 it is suo motu dissolved.
The key question ignored in the process, therefore, is the ‘role and power’ of the president. As Head of State, whose main responsibility is to ‘protect and adhere to the constitution’, the president may express his reservation to endorse a visibly extra-constitutional proposal for amendment, even if unanimously adopted by the legislature parliament. Hence winning the confidence of the president is essential for all concerned parties before such moves are taken. Would it not be constitutionally and politically immoral for the political party leaders to request the president to endorse an extra-constitutional resolution of the legislature parliament to amend a constitutional provision to extend CA’s term which only CA can extend?
Fifth, the president as Head of State and ‘torch bearer during crisis’ remains the ultimate institutional device that may have to be reasonably and rationally utilized by the nation to diffuse a crisis in the interest of people and nation. The faulty provisions of the Interim Constitution, which is a transitional legal framework of governance, has vested all ‘executive powers’ in the Council of Ministers, not in the President, except otherwise provided for by other constitutional provisions. Hence, all powers and responsibilities vested in the president do not have to be exercised in consultation with the Council of Ministers, as different institutional authorities are created to recommend the president to exercise explicitly enumerated powers. In this situation, the president as ultimate seat of power has to be very careful in carrying out his constitutional responsibilities in the interest of the nation. After May 28, 2010 the president as ‘torch bearer’ and the only elected civilian supreme authority has to be more responsible and accountable to the people and the constitution. In the absence of other elected institutions, the president remains to be the only representative elected by CA to ‘protect and defend’ the constitution. He has to act in conformity with the prescribed constitutional responsibilities and relevant conventions in order to make sure that the new constitution is drafted at the earliest. He should never think about taking advantage of the vague constitutional provisions formulated for the transitional period.
Finally, the best option left for the political parties in the current situation is to start behaving responsibly and focus on the main constitutional mission to establish peace and democracy through the new constitution and rule of law, as was done by most of the East European Countries while joining European Union, however, without compromising one’s national sovereignty. Dynamics of institutional transformation through legal framework requires careful handling of ‘institutional gaps’ in countries of transition. We still have time and the main task of the CA is to promulgate a new but very short basic democratic legal framework as stated in the Preamble and Act 63 (I) of the Interim Constitution and CPA. The details may be drawn by the institution created by the new constitution. For doing so completing the task of management of arms and armies in the cantonments is a must. Failure of the political parties to focus on its main task through consensus means heading toward a disaster for which the people will never forgive them.
(Writer is a constitutional expert.)
suryadhungel@gmail.com
Related story
10 moments that defined Nepali cricket in the last decade
