The issue will have a serious bearing on constitution-making, as the amendment, according to some leaders, will empower the parties to issue whips to CA members. [break]
The act was brought into effect after making it compatible with the Interim Constitution by removing redundant words like House of Representative and National Assembly and adding in Legislature-Parliament and Constituent Assembly.
A UCPN (Maoist) leader has said that despite enforcement of the act, the political parties can´t impose a whip on their lawmakers in parliament, let alone in the Constituent Assembly (CA).
Maoist CA member and advocate Khim Lal Devkota opined that political parties can´t impose any whip on their members even in parliament. Terming the amendment to the act as incomplete, he said it can´t work in contradiction with the CA Regulations-2008.
"The provision in the CA Regulations doesn´t allow any political party to impose a whip on its CA members. Therefore, CA members and parliamentarians are free to votes as per their conscience," Devkota told myrepublica.com.
However, a UML CA member said that the political parties have amended the act in a round about way to allow political parties to issue whip on members even in the CA.
While making the act compatible with the interim constitution, the parties have also ´tactfully´ changed the wording on what constitutes defection by a lawmaker.
"If a member remains neutral or absent during voting or castes his/her vote against the instruction of the party whip, this will signify that the member has quit the party," according to one of the five circumstances that constitute party defection.
But in the latest amendment, the parties have inserted the words ´leader or´ between the words ´party´s´ and ´whip´.
The UML member interpreted the word ´leader´ was intending to impose the whip even in the CA. "Because there are whips only in parliament and not in the CA. But there are parliamentary party leaders in the CA. Thus, parties wanted to impose whips on their members through those leaders," he said preferring anonymity.
UML CA member and advocate Agni Kharel said that with the enforcement of the amended act, the parties can effectively impose whips on their members in parliament. "With the enforcement of this act confusion about the whip has been removed. It will make the functioning of the Anti-defection Act effective," he said.
Asked whether the parties can exercise the whip in the CA, he argued that insertion of the word ´leader´ implicitly allows the parties to do so. "It is clear that the word has been added. It is up to you how you interpret it," he quipped.
While Devkota argued that the CA is supreme over parliament and CA regulations override the parliament act, Kharel claimed that the act becomes effective as the CA regulations are silent about whips.
While formulating the CA regulations, the parties had verbally agreed after long discussions not to impose any whip in the CA.
Tek Prasad Dhungana, legal advisor at the CA secretariat, said that the Anti-defection Act is directly relevant to parliament and not to the CA. "The intention of the act is enforcement in parliament not in the CA. Its indirect enforcement in the CA can be a political interpretation. If such a dispute surfaces in future, only the courts can give a legal or constitutional interpretation," Dhungana said.
According to him, it is meaningless to dispute over the matter as the changes were made after consensus among the major [at least three] political parties.
Some members claimed that the NC and UML had pushed for insertion of the words ´leader or´ as CA members from those parties had recently cast their votes against party lines.
During the voting in the CA thematic committee, UML members were sharply divided into two factions over crucial issues like state restructuring and system of governance.
In the NC also, some senior leaders including Pradip Giri, Narhari Acharya and members from ethnic and indigenous communities challenge the party´s policies on several crucial issues.
"Maybe the recent moves by their members against party policies pressured the NC and UML leaderships into thinking in terms of exercising the whip even in the CA," a member said.
thira@myrepublica.com
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