Constitutional experts differ about the modalities for smoothening the critical transition period but largely agree that Article 158 is indispensable at the moment. [break]
Senior advocate Badri Bahadur Karki says Article 63 should first be amended, in exercise of Article 158, for holding the new CA elections. And for the president to issue an order for the amendment of Article 63 on the recommendation of the cabinet, an all-party government is a must, Karki said.
How come an all-party government is possible now when parliament does not exist? “Article 40, under which a person who is not a member of parliament can be appointed a member of the cabinet, can be used to form an all-party consensus government,” he said.
Advocate Bhimarjun Acharya also agrees with the idea of amending Article 63 through the exercise of Article 158. He also sees the need of forming an all-party election government. But unlike Karki, he says the president can simply call for an all-party government despite there not being a parliament.
What about the provision that any order issued by the president as per Article 158 is to be ratified by the legislature within one month? Karki opines that the task of ratification can be left under an all-party agreement to the first meeting of parliament. On the same point, Acharya says that in a special crisis such as this, a president´s order may not necessarily have to be ratified by another agency.
Advocate Purnaman Shakya suggests an even simpler way. “The president might take up Article 158 on the eve of the election date, to amend Article 63 and other provisions as per necessity, and these amendments can be rafitied by the first meeting of the new parliament to be held within 30 days of issuance of the president´s orders,” he said.
Shakya, however, said that there would be no chance of altering the ad hoc government due to the absence of a parliament. “It can be an all-party government if other parties join it,” he added.
Constitutional experts observed that the demise of the Constituent Assembly and proclamation of new elections have landed the country in a unique crisis beyond the imagination of those who framed the Interim Constitution.
More aggravating was the hasty dissolution of the CA without amending the Interim Constitution (Article 63) for holding new elections. “The CA was going to be dissolved after half an hour. But the prime minister suddenly pronounced its dissolution and holding of fresh elections. Had Article 63 been amended by the CA for new elections, the crisis would not have taken place,” Shakya added.
He further added: “There was already the Supreme Court verdict for new elections. Based on that, the CA could have amended the constitution for new elections.”
Article 63 primarily specified the two-year term of the CA with its 601 members. The article was amended four times to extend the term by two more years before the CA was dissolved on May 27 following its failure to promulgate the new constitution. “That article has already been used and needs to be amended for new elections,” Acharya said.
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