Democratic constitution a must to protect core issues

– Bipin Adhikari
The Kathmandu Post
January 13, 2014

After being mired in a debate for weeks on who should call the first meeting of the new Constituent Assembly ( CA ), the government, the President’s Office and the political parties finally reached an agreement on Sunday. While the Nepali Congress (NC) had been demanding that President Ram Baran Yadav be allowed to call the first CA meeting, the CPN-UML, citing the Interim Constitution, argued in favour of Chairman of the Interim Election Government Khil Raj Regmi. The new agreement allows Chairman Regmi to call the meet, though some quarters have expressed reservations. In this context, Pranab Kharel and Pranaya SJB Rana spoke to a constitutional expert and newly appointed Dean of the Kathmandu University, School of Law, Bipin Adhikari about the constitutional underpinning of the dispute, the way forward for the political parties and the CA ’s structural issues.

Now that the debate over who calls the first meeting of the CA seems to have been resolved, how do you think the political parties, especially the NC and UML, move ahead?

This is a political question. The challenge of government formation certainly comes first. It will definitely be an NC-led process since it is the largest party in the House. The UML has already shown its interest to join the coalition as a principal partner. Both these parties have internal problems that limit the choice of party leadership. Hiccups in the process are therefore inevitable. The UCPN (Maoist) is also said to be aspiring to join the government. But it is in the interest of democracy that one of these three parties remains in opposition. As far as the remaining task of constitution building is concerned, it is the combined NC and UML strength which will decide part and parcel of the constitution, together with other fringe parties. Both these parties have a democratic agenda and more or less similar constitutional positions. It is for them to take on the Maoists, both in the House and the streets, and bring them on board.

The Supreme Court was moved by two petitions, one arguing that President Yadav be allowed to call the first CA meeting and another arguing for Chairman Regmi. Now that Chairman Regmi will be calling the meeting, what will happen to the petitions sub judice at the court?

It is good that they did not wait for the Supreme Court decision. Even though the logic of Article 69 is doubtful, the provision that the Prime Minister has been given the role of calling the house is as clear as crystal. No court on earth can disown a constitutional provision even though it disagrees with its sanctity in constitutional theory. The political questions doctrine does not allow the Supreme Court to take on any case that builds on political issues without constitutional controversies. In the constitutional system, based on Westminster conventions, the differences between the Prime Minister and the head of the state are internal, confidential and not for any court consumption. In a case like this, whatever is the decision of the Prime Minister is the decision of the President. Since they have managed it in their own terms, and managed them well, I think the Supreme Court will take judicial notice of these developments and wrap up the case with a dismissal note.

This case is just one example of parliamentary norms and standards not being carefully implemented. It shows that we are gradually moving away from constitutional processes and towards areas not clearly defined by the constitution. We are heading towards more uncertainty as the constitution is no longer being treated as setting out the roles of governance. This is being decided more and more by politics. This is a very risky way and it will vitiate our culture of legality and constitutionality, which must be maintained on all occasions.

In the past, political decisions have often taken precedence over legal ones. How do you see this trend?

This will continue to happen because no one is serious about rule of law or legality. Constitutionally, there are hardly any examples of a case like ours. In British history, there is no example of the monarch going out to consult the political parties against his/her own prime minister. Even powerful prime ministers like William Gladstone never spoke out publicly against the monarch. It was not that they didn’t have differences in opinion but they settled such differences between themselves. The monarch never tried to influence the prime minister by creating alternative public opinion. Our case shows that the concept of ‘President in council’ [King in Council] is not working. Even the government is not working in a way that meets the legitimate expectations of a constitutional regime. This means that we are headed for more chaos. Even if we have a good constitution, if this political culture continues, then we won’t have a good environment for its implementation.

The last CA failed primarily due to the inability of the political parties to work together. Given this election’s mandate to work together, how will the constitution-drafting process be realised?

Nepal is in a vicious political cycle. I do not think that the reasons behind the failure of the political parties were only the instabilities created by the parties. There were many other reasons, and some of them beyond the capacities of these parties to handle. For example, geo-political issues have always been decisive in the internal problems of Nepal. None of these parties has been autonomous in their decision-making. They have to understand this and work together for a democratic constitution. No democratic constitution will work in Nepal if the core national interest of the Nepali people are not protected. The real challenge is there.   

Questions have been raised about the last CA ’s structure where a small number of senior leaders held a disproportionate amount of power and sway over the decision made. How can the structure of the CA be made more inclusive so that this doesn’t happen again?

It was not the structure of the CA which was a problem during the first CA process. I think there was a workable structure. It was, however, the issues that came up that delayed or circumvented the process. There was crisis of confidence between parties. There was even a proposal to change the name of the country. So many decisions were made without putting them to a referendum. Efforts were made to bring the judiciary under a parliamentary majority and eliminate opposition in the House. The changes in Nepal did not establish either the revolutionaries or their partners. Many of the leaders found that core national interests were being challenged. These are the things that resisted change.

As far as the challenge of making the house inclusive is concerned, it must be worked out as a national endeavour. Those who are not in the House and those who are not in the government should have more opportunities to participate in the process. It is possible to create an additional machinery outside the CA to make decision making more inclusive. The Maoists in the streets, who did not join the elections, can also be accommodated in this structure. Additionally, the CA Rules, to be devised by the new CA , can create provisions which compel party leaders to take responsibility within the House and make sure that nobody is left behind in the decision making. There has already been some review work done in this regard.  

On a final note, since the President was elected in 2008, he has already been in office for five years now and his tenure could effectively last another four years, which is the tenure of the new CA . What kind of example does this set?

A very poor example. Constitutional provisions should not be interpreted in such a way that gives an undemocratic result. All the provisions were created to ensure good governance and periodic elections are a must for good governance. When you can hold an election for 601 people, it is very inappropriate to say that the President is an exception. The rule of law demands that there be an election for another President.

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