You had a chance to watch the constitutional process up close as the head of the Constitutional Committee. Where did it go wrong?
The main reason behind the failure of the CA were disputes between political parties on important constitutional issues, as well as divisions within each of the major parties. For instance, if you search for the reasons behind the eventual split in the Maoist party, its top leaders didn’t see eye to eye on important constitutional issues even while the CA was in existence. But like I said, this applied to all the parties. The other thing is that the first meeting of the CA had decided that the future state would be ‘federal democratic republic’, but the Maoists later said that the system should be ‘people’s federal republic’.
Thus there was a big ideological and philosophical gaps on future political system. The composition of the CA also didn’t help. It was a hung CA with no party in clear majority. Nor could party leaderships represent the voice of their rank and file. Moreover, there were some procedural errors. One of them was not defining the basic principles of the constitution in advance. We wanted a new constitution, but were not clear for what kind of political system. Only once you give the specifics of a house can the engineer help build it for you. But if you haven’t made up your mind on what kind of house you want, that doesn’t work.
Reading some of your recent public statements, you seem to have singled out the Maoists for CA’s demise. Is that the case?
No, I didn’t imply that, although that is certainly one of the factors. Like I said, the Maoists hindered constitution making by changing midcourse the vision set by the first meeting of CA. Different parties represented different political philosophies. The constitution could have come out only if they had shared a common vision based on sound democratic principles.
It’s nearly four months since the dissolution of the Constituent Assembly. How have you evaluated the political process after CA’s demise?
As we talk, this is the 115th day (Sept. 19) since the CA’s dissolution. The political parties have been repeating the same old mantra of agreement, but tell me in all these days have they reached an agreement on even a single core issue? This raises certain questions. Are the current negotiations being carried out only for public consumption? The other thing is unless you know which way to take, you can never move forward. Sometimes they say we should reinstate old CA, sometimes that a new parliament should be elected, sometimes they say, no, it is a new CA that should be elected. The legitimacy of the old CA went the day it was dissolved. Its legitimacy diminished progressively the more it was prolonged beyond its original term. This diminishing legitimacy reached a zero-level on May 27, 2012. So that chapter is closed.
You hinted that the current round of negotiations could be for public consumption. In your opinion did political leaders show similar lack of seriousness in the final days of the CA?
It was a ridiculous situation. Could all constitutional disputes be settled, a draft prepared, suggestions sought from the people, the CA members made to read the final draft and discuss and promulgate the constitution, all in the same day? The political leaders were saying they could achieve all this even on May 27. It was a laughable proposition. Instead, the focus on the final day should have been on deciding alternatives to a situation of no constitution.
At which point during pre-May 27 negotiations did a constitution become unviable?
Right after the end of the CA’s original two-year mandate, I had briefed political leadership in writing that there could be no constitution if they didn’t arrive at some sort of an understanding on core issues. I didn’t get any answers until the expiry of the CA two years later. A month in advance from the CA expiry date, it was clear that there could be no constitution through proper constitutional process. On May 26, a day before the expiry date, I told the political leadership that no matter which course they adopted, there could be no constitution by the next day. I had asked them to rather concentrate their energies on the alternatives.
Now that the constitutional process has come to a complete halt, how do you think the country should proceed henceforth?
The Constituent Assembly is dead. It died a natural death since it could not come up with a constitution within the scheduled date. Originally, its term was only for two years; the final two years was only its extended lifespan. As I said, the longer the body continued to exist from the end date of its original mandate, the more it lost legitimacy, until the legitimacy hit zero level on May 27, 2012. The old CA lost all its credibility, legitimacy and legality on that day. The CA thus cannot be revived. Even if it is, and the revived CA promulgates a constitution, such a document will not be accepted. We wasted four precious months debating an alternative that was never even an option. Now all the focus should be on discussing new polls.
This was an issue that should have been settled through political consensus. But the prime minister declared new elections without first establishing such consensus. Our constitution does not permit such unilateral decisions at the time of transition. I believe the decision to let the CA go without first establishing alternate mechanisms that would come into play in its absence came with a wrong intent. Ideally, the legislature-parliament should have amended the interim constitution to clear the way for new polls.
In my view, we should go for full-fledged parliamentary elections to get people’s mandate for the next five years. Such a parliament should be allowed to function as CA for a certain period, say six or nine months. But the parliament should be allowed to decide which six- or ninth-month period of its term it wishes to function as a CA. This is important because if we say the body should function as CA for first six months or the second six months of its existence, it might not get a chance to complete needed homework on new constitution.
But even for new election the interim constitution needs to be amended. The political parties have been saying that one of the options could be a very limited extension of CA, say for a day, to clear the constitutional hurdles. What is wrong with this argument?
Look, what is dead is dead. If you are to revive the old body for a day, what stops you from reviving it for a year? If you are arguing that the CA should be revived to ratify political agreements on contentious issues, then we will not be making a constitution through the Constituent Assembly. It will be a constitution prepared from outside the CA mechanism and lack legitimacy.
But doesn’t CA’s revival make sense when 90 percent of constitution making, we are told, has already been completed?
Who says 90 percent work has been completed? As the chairperson of the Constitutional Committee in the CA, I can tell you that is not the case. The political leaders had been saying that 90 percent work on constitution had already been completed at the end of the CA’s original two-year tenure. What I would like to ask them is: If you haven’t reached an agreement on any of the core issues, does it really matter what percent of subsidiary work has been completed? There has been no definite agreement on form of government, election system, legislature and judiciary. Remember, these are all old issues. The parties are even farther apart on new issues like federal structure.
Even after the preparation of the drafts by the respective committees in the CA, the drafts have to be discussed and needed changes made. We had a special committee to collect people’s opinion on agreed issues. This CA committee wasn’t even allowed to carry out its task. I agree that some of the constitutional work was done, but all these were easy tasks. All the big issues were yet to be settled. Thus it is impractical to say that you will revive CA for a day to ratify agreements on all these issues. Even if that happens, it will not be a democratic exercise.
Perhaps the biggest stumbling block to a new constitution on May 27 was disagreements on federalism. How did you view debates on this issue in the lead up to the constitution deadline and what is your take on current negotiations on federalism?
I believe May 15 could have been a turning point. It was on that day that major political parties had agreed on 11-province federal model. This had raised hopes that a draft could be prepared on the issue of federalism. So the agreement was presented to the Constitutional Committee’s dispute resolution sub-committee. But the agreement broke down within a matter of days, dashing any hopes of agreement on this crucial issue. In the current negotiations, there is great disagreement over the number and names of federal provinces. But remember, these are not the only points of disagreements between political parties. At the end of the CA’s term, there were 117 points of disagreements, and seven or eight points more on other related issues like citizenship, formation of various commissions, and on issues related to janajati and other minority communities.
Of the nearly 125 disagreements, only 78 were over federalism. Also remember that the points already agreed upon came to be contested as we neared the May 27 deadline. Even if there were agreements on all the issues, there could still be disputes regarding even such minor things like commas and full stops in the constitution. There is no guarantee that agreements at the political level will translate into agreements on the final points that appear in the constitution. Thus it is misleading to believe that only federalism is a hindrance to a new constitution.
Do you see any possibility of the political parties finding meeting points on contentious issues?
I believe such a meeting point can be reached if we elect a full-fledged parliament for four or five years. But if you hold another election for CA, there can be no such meeting points. Let us suppose the CA had been able to promulgate a constitution. In that case, the political parties would have had to face election just six months later. As no single party enjoyed a clear majority in the CA, they would have tried to improve their electoral chances through their often competing stands on important constitutional questions. This is exactly what happened. A constitution should not be prepared with electoral gains in mind. This is the reason there was no willpower on the part of political parties to come up with a constitution. If instead there was a provision of election three or four years after the promulgation of the constitution—as will happen if we elect a parliament—such political maneuverings could have been avoided with the whole attention of lawmakers going into constitution making.
Can the current government take the country into new elections?
The parties can go into election only through political consensus, not through unilateral decisions. For new election, you need an electoral government. First of all, the prime minister should be selected on the basis of political understanding and an electoral government established. This government will prepare electoral laws, again through political understanding. The interim constitution does not hinder this path as the provisions in IC are already dead. In order words, if there is no provision for new election in IC, legal remedies can be found. This does not necessarily have to await IC’s amendment.
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