To begin with, the debate is about the Supreme Court’s decision, which held that the constitution can be amended for the last time in order to extend the CA’s tenure.
Before getting into the merit of the order, it must be understood in a proper context. And the context is: first, the tenure of the CA is not unlimited. Second, the tenure of the CA should be clear and determinable because constitution making, by its very nature, should be transparent, participatory, predictable process that sticks to certain norms and rules. This is why the Interim Constitution fixed the tenure of the CA to two years. The argument that the CA is sovereign and can hence act in whatever manner it deems fit and extend its deadline is preposterous. The essence of the CA is to come up with such rules that allow the public to participate and predict the process, which is possible when there are transparent procedures, and proper debates aimed at achieving set goals. Nepali people did not elect CA members to make CA “sovereign”. CA is a means not the end, so are its privileges and rights. Without the end (Constitution) the CA has no meaning, no rights, and no privileges.
Unfortunately, the CA suffers from lack of clarity, which in turn has contributed to lack of transparency, absence of effective debates and by and large no public participation. This is largely owing to the fluidity in the schedule and arbitrary extension of deadline, primarily negotiated in return of political benefits. In short, the CA has been made to shed most of the values that in theory differentiate it from other forms of constitutional making processes. Thus, the CA is now no different to a constitution drafting committee consisting of top-tier politicians. And the worst part is that most members of this committee were rejected by the people in the CA elections. The majority of and the vital decisions relating to the CA, including the extension of its deadline, is taken by this committee of central leadership of political parties, which is not accountable to the people. The likes of Madhav Nepal, K.P. Oli, Bamdev Gautam, Sushil Koirala, Krishna Prasad Sitaula, Bhim Rawal, and Mohan Baidhya, who were defeated in the elections or are not the members of the CA, are central to all vital decisions regarding the CA.
The SC decision in this regard is seminal in ensuring the right course of the CA and is as constitutional as the CA itself. First, as discussed earlier it would have been against a clear provision of the Constitution to decide that the CA has unlimited tenure. Second, and the corollary to the first: if the tenure is not unlimited, it must have some defined limit, which the Court tried to indicate in its earlier decisions in order to create a moral obligation on the CA. But the CA didn’t bother to listen; in addition, the CA consistently failed, without any good reasons, to convince the public and the court that it can work out a viable deadline and function within it. Hence, the Court had to fix the tenure according to the Constitution and make it a legal obligation. In normal circumstances, the Court may never have had to adopt this course or it might not have had clear authority to do so. However, in the present context, it was imperative that the Court fix the deadline, and yes, the Court had the authority to do so.
The Constitutional History and the development of the concept of constitutionalism include a concept that has been entirely neglected by the Nepali academia and lawyers. That is the concept of constitutionalism of transition, which, rather than grounding itself on some Constitutional order, serves to mediate the normative shift in justice and other socio-political values that characterizes the extraordinary periods of constitutional transformation. Thus, constitutionalism takes a purposive form, whereby the court including every other institution serves to facilitate transformation and manage transition. And the SC decision also has its roots in this concept. This idea is reflected in the Interim Constitution too.
According to article 100(2) the Supreme Court is under a clear obligation “to commit to the aspirations of the Jana Andolan,” which would have been an absurd provision in normal circumstances, but a decisive provision in the present context which must be understood while discussing the Court decision.
In fact professor Ghain, a Constitutional scholar, has gone so far as to observe “many countries in the transition to democracy in this century have built in a deliberate ‘democracy deficit.’” The point here is that constitutionalism of transition does not mean anarchy and no rule of law (albeit some renowned Constitutional scholars believe even rule of law does not follow idealist conceptions: Instead, the rule of law is constructed in relation to past conceptions of injustice, and an extraordinary form of the rule of law emerges during transition.). But it is essential the Court understands that it is in the middle of a tension between Constitutionalism as backward-looking verses forward-looking, and settled versus dynamic process. It is unfair to criticize the Supreme Court’s decision on the basis of a concept of constitutional law boxed in preconceived standards. This line of thought presupposes constitutional theory of normal times that so overzealously prohibits change. It will also be an indication of hypocrisy and poverty of logic when politicians hide behind the excuse of transition when they seek justification for their frivolity and simply do not bother to understand the Supreme Court’s special role.
As far as the issues of referendum or another election are concerned, the Supreme Court has clearly indicated that they are alternative political way out in case the CA’s tenure expires. The Court has made it quite clear that what the alternative should be is entirely within the purview of the CA and is a political question the Court should not delve into.
No one has any problem when the ‘committee’ of rejected politicians decides on the fate of the CA. No one feels the CA’s jurisdiction is encroached when these few politicians, who do not represent the people, decide in a dark room whether or not to extend the deadline. Furthermore, for many the SC decision is an opportunity to hide the fact that the CA has been held hostage of politics of deadline extension, thereby depriving it of its true identity. Hence, the decision is proper in its substance and context and constitutional in its merit.
The author is an advocate and holds an LL M from the University of Cambridge
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