As we near mid-February deadline of constitution writing, rumor is that the main parties wish to proceed from the May 15, 2012 agreement which had envisioned a mixed form of governance with a provision of power sharing between the directly-elected president and the prime minister elected by the parliament, plus the 11 multi-ethnic federal provinces. But people are still doubtful of the political class. So what’s the truth? And how is constitution writing progressing? Constituent Assembly Chairman Subash Chandra Nembang shared his insights with us.
First of all, update us on constitution making.
CA II has owned up all agreements of CA I and taken statute drafting a step ahead of where it was on May 15, 2012. The Committee to Study and Determine Constitutional Records has sorted out issues of consensus and those yet to be resolved. It has submitted the resolved issues to CA’s Constitutional Political Dialogue and Consensus Committee through CA. Constitution Drafting Committee has said it has finalized drafting process for the agreed issues. At the same time, Dialogue and Consensus Committee has carried out a series of dialogues and consultations with forces both in and out of CA. More importantly, this committee has looked into issues of consensus of CA I and May 15 agreement. It has been working to garner consensus even on these issues. Thus we can say we have traveled many miles in statute drafting.
If we have reached May 15, 2012 that is hardly an achievement, wouldn’t you say so?
There is more. We have settled the form of judiciary and nature of parliament in the future set up. These issues had been a bone of contention in CA I. In other words, we have started from where CA I left off. Now we have owned up past deeds and moved a step ahead.
But wasn’t the May 15 agreement instrumental in the dissolution of CA I?
Perhaps it is back to square one in a sense. Until the constitution is promulgated none of these achievements will count for anything. But you have to look at it from another angle as well. Recall May of 2012 and analyze the situation. Those were the times when we had started to say the constitution would be promulgated within 10 to 15 days. That’s what the parties represented in the CA I had been saying. Now we still have six months to go. In the past, we had been discussing the issues but did not resolve them. Now we have been doing both. And the good thing is the political parties seem really concerned and committed this time. This is the reason we can hope for much from this CA.
Besides, many things have become clear in the last few months. After I was elected CA chair unopposed in February, there was a debate regarding whether we should start from the scratch or where CA I had left us. That debate continued for some time. But we finally agreed to own up past agreements. We endorsed the CA’s rule of procedures as well as CA calendar. We have arrived thus far by stepping on those rules of procedures and calendar. Besides, by and large all parties have agreed that we should make the May 15 agreement a basis for future agreements.
That may be true but we have not even started discussing the most contentious issues of federalism and system of government.
I would like to take you back to May 15 again. That was the time when the parties had agreed on these contentious issues but had later backed down. But this time around, they have made the same agreement the basis for further discussions. And they are committed to reaching a consensus soon. The CA calendar has also been endorsed by all forces in the CA. No one is in a position not to abide by the deadline and rule of procedures.
But many still doubt that the contentious issues that led to CA I’s demise could sink CA II as well.
I have made it clear in the CA that it must draft the statute within a year. And all parties have officially made a commitment toward this end. Thus we cannot even imagine delaying it. After all, the parties have committed to draft the statue within a year in their election manifestos as well. Regarding the two most contentious issues, so far as I know the parties have come to a kind of understanding about how to settle them. They have discussed these issues a lot. Now is the time to take a decision. I believe that the parties understand the urgent need to do so very well.
What will be your role as CA chair in resolving these disputes?
We had CA’s rules of procedures endorsed through consensus in the CA. We have made the CA’s calendar through consensus as well. And the CA rules have clear provisions for those times when there can be no agreements. The same rule will decide what to do. Consensus should still be the first and only way of settling disputes. But whether the parties reach such consensus will be less important than fulfilling their promise of delivering the statute within the stipulated date.
Do you suggest you will settle the issue through voting if consensus fails?
It will be too early to discuss this option now. The rules of procedures have clearly mentioned what to do when parties have consensus or if they fail on it. But I believe the parties will settle issues through consensus and we will have a consensus constitution. Even if they have to go to voting, it should be done through consensus.
We must trust the parties. If they don’t play their part, I will play my role in line with the CA’s rules of procedure.
Let’s change track. Doesn’t the failure to nominate the 26 CA members undermine the CA’s legitimacy?
You cannot call it illegitimate simply because the CA is short of 26 members. But the failure to give complete shape to CA has created room for doubts. Personally, I have been advocating for giving complete shape to CA from the very beginning. Sadly, even CA I had failed to do so. The CA II has repeated the same mistake. If you recall, I opposed the formation of Chief Justice Khilaraj Regmi-led government in 2013. I even spoke against it in the Supreme Court for four hours. But I was also the one to suggest that the same government should complete the nomination process. I did so right after the CA polls. Our failure on this front has allowed some to question the legitimacy of the government itself. This is unfortunate.
Have you been taking any initiatives to expedite the nomination process?
I have been doing my bit. I met UML chief K P Oli on Sunday and raised this issue. On Monday I met UCPN (Maoist) chief Pushpa Kamal Dahal. I discussed constitution making issue with him but I also reminded him of 26 member appointment. Then on the same day I met the Prime Minister and reminded him that this situation should not continue any longer. Even during the meeting with the President, I have raised this issue. The government and all other parties must take it seriously and give complete shape to CA at the earliest. Otherwise they should tell the people why they are not able to give complete shape to CA.
You seem to have played a more decisive role in CA II. Or is it that members of the new CA are more disciplined?
Not really. This time around, they are committed not only in words but also in action. Perhaps we all have learned from the past mistakes. Even those forces which are out of the CA seem to be cooperating. Members of Dialogue and Consensus Committee have been reaching out to underground outfits in Tarai. They too are positive about constitution making. This is very positive. I believe that even Mohan Baidya-led CPN-Maoist will be positive because we are going to promulgate the statue by incorporating issues settled by CA I of which they were also a part.
The CA hall appears empty most of the times. Why are so few of our lawmakers present during its proceedings?
Legally, there is nothing to compel each lawmaker to be present in the CA. The CA’s rule of procedures simply states the lawmakers should be present in the meeting. But this does not mean they can skip the meetings of CA or those of the Legislature-Parliament. Regarding the low presence, I have drawn the attention of chief whips of each party about it. I have raised this issue in CA’s Business Advisory Committee as well. Lawmakers should understand the importance of their presence in the CA. When I met the PM on Monday, I told him: ‘Yours is the two-third majority government the House falls short of quorum even to discuss the bills of vital importance. This is unfortunate.’ The very fact that I have to draw the attention of party leaders shows how serious this issue has become.
Finally, are you sure we will have constitution by Mid-February?
We must have. We must believe we will have. There is no alternative.
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