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Implications of a hung CA
The Interim Constitution of Nepal 2007, which pledged a Constituent Assembly (CA) to the people, has done so without enumerating its constituent powers whatsoever.
All that this constitution provides for is a guarantee of the basic rights of the Nepali people to participate in a free and impartial election to the CA and frame a constitution for themselves through this organ. The Interim Constitution does not guarantee that the sovereign house will have no limitations in its constituent powers or that it will not be constrained by the decisions of the interim legislature or the interim government on the basis of this constitution or by any executive agreement that it has signed with rebellious groups in the pre-election period.
As such, the guarantee of the basic rights of the Nepali people to frame a new constitution does not imply the unencumbered sovereign capacity of the CA to draft a new constitution of its choice without any limitations on its powers.
The assembly is intended to operate within two concrete a priori formulations. Article 159 declares that (a) Nepal shall be a federal state and (b) a country with a democratic republican setup. The first formulation concerns sharing of sovereign powers between political units, which do not exist till now in the Nepali consciousness, and the second concerns dispensing with the monarchy, which allegedly lost its credibility in the fight against the Maoists.
As to these preconditions, while the nature of the federal state is something still to be worked on, Article 159 requires that the transition to a republic be made at the first meeting of the CA. To give effect to this formulation, the parties in the alliance even dropped the clause requiring a simple parliamentary majority by the third amendment to the Constitution.
It is just by chance that the operation of this provision is tied to Article 75 which ensures that all questions submitted for a decision to the CA, except as otherwise provided in Part 7 of the constitution, must be decided by a majority vote of the members present and voting. Accordingly, the alleged first meeting must also pass a motion to this effect by a working majority in the House in order to abolish the monarchy.
Similarly, the constitutional declaration that Nepal shall be a federal state comes ahead of its due date. Ordinarily, it is the elected delegates of the CA, who have the responsibility of deciding what form of government is best for Nepal, who should make the decision. With this clause inserted into the constitution, the debate has now been carefully shifted to the issue of autonomy, which had not been the demand of the natives of this country so far.
This shows the enormity of the contradictions that the CA finds itself in. A genuine CA by definition can only be convoked under conditions of full democratic liberties of the delegates, permitting the participation of all the parties concerned, and without any external or internal limitations on its constitution making powers.
A CA is not a legislature that is supposed to be governed under express or implied limitations on its constituent powers. It is a self-sufficient source of power from which all specifics of a state are to be derived. As a corollary, it should be able to exert paramount control over the constitution while making the frame of the government and its administration. While the Interim Constitution might have given birth to the CA in the normal course of political development, the assembly can chart out its future ways without any guidance from the parent document and forge ahead with its own terms and conditions. Otherwise, there is no difference between a normal legislature and a CA intending to give a fresh start.
However, the faulty Interim Constitution has outsmarted its architects in two very surprising ways. First, as far as the general rule of the constitution is concerned, the members of the CA must vote on each and every article of the draft constitution in order to pass it; and failing unanimous passage of the motion, at least two-thirds of the total members of the CA must give it a unanimous exit to turn it into the new constitution.
So, even if the first meeting of the assembly, for example, were to abolish the monarchy and establish a republican state by a simple majority, the move cannot in anyway pre-empt the power of the CA members to reintroduce a new motion restoring the monarchy in due time and pass it by a two-thirds majority. There is nothing in the constitution which can restrain this motion; and as long as there are people in the House to table such a motion and to support it by a required strength, the monarch is here to stay. This means that, contrary to popular belief, the king's fate will remain undecided until the new constitution is promulgated. Same with the declaration of a federal state.
Secondly, the faulty system of proportional representation that the architects of the Interim Constitution introduced with little knowledge of the ensuing structure has already generated a mixed political lot in the assembly. As no party has an outright majority, what we have is a hung CA, and there are many parties in the House which do not share the political platform of the Seven-Party Alliance (which had monopolized the process of drafting the Interim Constitution). The House is compelled to work with these uneasy political partners.
As the constitution does not provide for the dissolution of the assembly on any ground, except when the objective has been accomplished, a hung assembly is bound to work out either a coalition government or a minority government with the support of these backbenchers. The requirement of a two-thirds majority in the constitution making process will force the ruling elite to redefine issues like federalism and monarchy in the overall context of the state's restructuring. The smaller parties in power will make a lot of difference when major constitutional policies are sorted out in the House.
There are some who have already started an exercise (in futility) to help produce a national government eliminating the prospect of any opposition in the constitution making process. The Seven-Party Alliance is almost an exercise of this type, which has already served its purpose. But it is inconceivable that it can continue any longer in the new scenario. In any case, such a national government has a very poor reputation historically. Whether it is the national government of GP Koirala (2006-08) or of British Prime Ministers Ramsay MacDonald, Stanley Baldwin and Neville Chamberlain (which held office from 1931 until 1940), all have been a liability to the nation. Fortunately, a loyal opposition is going to be prominent in Nepal for the next two years. This opposition is going to make sure that the nation is in safe hands.
Additionally, a coalition government led by a party which has lost its credibility before the majority of the people can be equally destructive to the cause of the nation. Nepal is surely familiar with the hung parliament after 1995. It is perhaps not out of place to mention that even in the 1974 general election in the UK, sitting Prime Minister Edward Heath had refused to resign at first, attempting to build a coalition government despite winning fewer seats than the then opposition Labour Party. So if Prime Minister Koirala is still trying to hang on to his post, it should come as no surprise. But the House itself is going to take offence against such ambitions.
The structural limits on the power of the CA and unauthorized normative or inspirational impositions are going to grow fainter due to the operation of the hung CA. This is good for the country.