In legal lingo, ‘non-performance of duties’ is equivalent to failure to discharge an obligation. In our constitutional regime, a motion for impeachment can be presented before the Legislature-Parliament against the chief justice or any other justice of the Supreme Court if he/she is unable to perform his/her duty for reasons of incompetence, misbehavior or fails to discharge the duties of their offices in good faith.
Constituent Assembly (CA) members/parliamentarians are the representatives of people who are paid by the state to discharge the duties of their office in good faith with full competence, capability and in a manner befitting the law and constitution. More importantly, the amount required as remuneration and benefits payable to the speaker and deputy speaker of the Legislature-Parliament and the chairperson and vice-chairperson of the CA is charged on the consolidated fund (Article 92). The performance of duties of the speaker and members of the parliament thus means the discharge of their ‘action’. In the context of voting, they can discharge their duty by casting a ‘yes’ or ‘no’ vote while the non-performance of duty means to stay ‘neutral’ or be ‘absent’ in the voting process.
The implication of non-performance of duties by the duty bearer is that he/she is proved as incompetent and unable to serve the duties of office as imposed by the law and constitution. UML has argued that its stand to stay neutral in the voting for the formation of consensus government will facilitate the constitution-writing process and the Madhes-based parties have produced a demand paper as a pre-condition to cast their votes. Irrespective of their stands, the decision of both parties to stay neutral in the voting is the non-performance of their legal duties, which is in complete contravention to CA rules and contrary to normal parliamentary practices.
The demand and discussion of amendment to the constitution or to CA rules is totally absurd in the context of electing/selecting a prime minister. It has become a general tendency among the political parties to start blaming laws and talk of amending the constitution when they fail or are unable to achieve their desired goals.
Sufficient consensus and judicious compromise in politics is the need of the hour and these words are good to hear as well. The CA election in Nepal has established the primacy of participatory politics and compelled all political parties to pursue a politics of judicious compromise and foster the basic norms of democratization. The distribution of votes among the parties has given a mandate for building a shared future to be institutionalized through a new constitution, to make a political transition from authoritarianism to constitutional democracy and to institutionalize responsive governance. For this, sufficient consensus between political parties is a must. However, this does not mean that the politics of consensus should prevail or end only around the post of prime minister’s elections. If political parties want to work in good faith by discarding all kinds of petty party interests, there will be a chance of consensus politics even after the election of prime minister through voting. They can do this in the formation of council of ministers or in other issues of governance including the constitution-drafting process.
All of us know that since the parties failed to find a solution through the first option, which was sufficiently provided by the president for selecting a prime minister through political consensus under article 38(1) of the constitution, the second option (to elect the prime minister by a majority of the total number of the members present of the Legislature-Parliament) was activated. By virtue of this provision, in case any of the motions introduced for decision at the sitting could not be passed by majority as required by the constitution on the day prescribed for the election of prime minister, the speaker has to call a sitting again for the purpose of introducing all the motions for decision. The process so referred is continued unless the motion is passed by the majority as required.
The aforesaid provision, however, does not prohibit consensus politics. Even after entering into the process of electing prime minister by a majority, political parties, if they really want, can go for consensus to select the prime minister. For this, the CA rules can avail at least two options: First, either one of the two proposers of the prime minister’s candidacy may withdraw the motion already in the legislature-parliament and help the other to become consensus candidate for prime minister. Second, if both candidates – Ram Chandra Paudel and Pushpa Kamal Dahal – decide to withdraw their motions, they can make the way for fresh selection of prime minister, which will provide political parties new opportunity to choose prime minister through consensus. In case there is again no political consensus, parties may come with a fresh candidate other than Paudel and Dahal for a majority voting. For this, the proposers of both candidates can withdraw the motion already rose in the Parliament with the permission of the Parliament under rule 22 of the CA Rules 2008. For me, this would be the best option for fresh start if the fourth round of elections becomes futile.
The demand and discussion of amendment to the constitution or to CA rules is totally absurd in the context of electing/selecting a prime minister. It has become a general tendency among the political parties to start blaming laws and talk of amending the constitution when they fail or are unable to achieve their desired goals. This is being attempted now as well. In fact, the perennial problem of our political parties is the non-implementation of laws. The power to amend the law and constitution is recognized with a view to overcoming the difficulties which may be encountered in the working of the constitution or law at a given stage in a nation’s development. But our position in the case of selecting/electing prime ministers nowhere justifies the amendment to CA laws or constitution. Obviously, political parties may establish best usages as a means of bringing about constitutional development without formal changes in the law.
(Writer is a constitutional lawyer.)
bhimarjun@gmail.com
Related story
RPP to stay neutral in Koshi province: Chairman Lingden
