DINESH TRIPATHI is a well known name in the legal sector. As an advocate, Tripathi has taken part in land mark constitutional issues at the Supreme Court. Tripathi, executive member of South Asian Human Rights Watch, spoke to NEW SPOTLIGHT on various issues. Excerpts:
How do you see the political and constitutional state of Nepal following the expiry of the deadline of the Constituent Assembly?
It was a dream project of Nepal to write a new constitution through the Constituent Assembly and it was a long cherished goal. Writing a constitution through the CA is the transformation of sovereignty to the people in real terms. This is a process of transfer of sovereignty to the people. This is the way to reassure the sovereignty of the people. This is the way to express the feeling of ‘we the people’ or to assure the sovereignty. That dream has now been hijacked.
How do you view the elections process?
Although the date for the elections has already been announced, there is a constitutional vacuum for lack of a clear legal and constitutional basis to hold them. The election was announced not for holding it but with an intention to capture the state powers. It is a well calculated strategy of Maoists to capture the power. Although it is said that the Constituent Assembly was dissolved by prime minister, CA does not recognize the face of the prime minister in real terms. CA can recognize prime minister as just a member of CA. As prime minister, he has no role and place in CA.
Some former CA members have been saying that it was dissolved by the prime minister. How do you look at this?
As just a member of the CA, the prime minister does not have the right to dissolve the CA as the CA is not a legislature parliament. Dissolution of legislature is the prerogative of the prime minister but the CA does not have periodical elections and it is one time event in the life time of any nation. The CA is not under the ambit of prime minister for its dissolution.
If that is so, why did the prime minister recommend fresh elections?
As the prime minister does not have the right to dissolve the CA, he does not have the right to fix the date for elections. In a parliamentary democracy, the prime minister has the right to recommend the dissolution and he or she can call the date for elections. However, the CA is guided entirely by different jurisprudence. CA is not a legislature but a Constituent Assembly and legislature is a part of Constituent Assembly.
Why are so many people concerned about all this?
A wrong propaganda is created about the dissolution of CA. Actually, CA died naturally after completion of its tenure. According to Interim Constitution, the tenure of CA was just two years. However, the tenure was extended up to four years. It is finally the intervention of the Supreme Court which set the tenure. In its order, the Court made it clear that the CA needs to produce either the new constitution or go for other alternatives. Otherwise it would cease to exist. As per the decision, the CA ceased to exist at 12 PM of May 27, 2012. Nobody recommended for the death of CA, neither the prime minister nor the cabinet.
How do you see the role of the prime minister?
In every parliamentary democracy, the president has special rights. The president normally pronounces the recommendation of the cabinet and prime minister. However, in the recent case, the president’s secretariat has not issued any statement, press release or any other document on the basis of the recommendation by the prime minister. This shows that there is no footing and constitutional ground. This is a zero vacuum situation. I don’t understand on what ground the Election Commission is preparing for the elections. It is unfortunate that the Commission is reportedly preparing for elections which have no constitutional and legal validity.
What constitutional ways do you suggest?
At the heart and soul of the present interim constitution are Articles 38 and 43. These two articles recognize political parties as the main forces of the constitution. Article 38 says that the prime minister shall be selected by the political consensus. According to article 43.1, the conduct of the business of government of Nepal shall be carried out consistently with the aspirations of the united people’s movement, political consensus and culture of mutual cooperation. It has also specifically laid down groups for preparing the government program through mutual agreements. However, the government has not taken to confidence any political party when the date for elections was announced. Even some coalition partners walked out when the government announced the elections date. The announcement of elections is against the letter and spirit of article 43. The article is a mandatory provision of the constitution and cabinet is under constitutional obligation to honour it.
How do you see the possibility of revival of Constituent Assembly?
Within the existing provision of the Interim Constitution, there is no provision for the revival of the CA. If we agree that the CA will be revived, we need to accept the proposition that prime minister has the right to dissolve it. If we agree on this proposition, we have to accept the fact that it was not a CA but a legislature parliament.
Some people are arguing that there is a possibility for the revival of the Legislature Parliament. How do you look at it?
There is no independent status for the Legislature Parliament as it was just a shadow of the CA. We held the elections for the CA and the Legislature is a part of CA with limited rights. The constitution clearly said that the tenure of CA is two years and the Supreme Court under its ruling fixed the tenure of CA. There is no provision in the interim constitution to revive the CA. On what ground CA would be revived and for what purpose? If a CA cannot produce a document in 4 years, how can it produce constitution within a week?
It was revived the last time and why not this time?
The Parliament was revived in 2006 by a people’s movement. I don’t think it is natural to revive the CA or legislature parliament on the pressure of members of the dissolved CA. It will be an extra constitutional demand. Dissolved CA has also lost the political legitimacy as its tenure ended after its extension several times. It has also lost the faith and support of the people. When the CA died naturally, there were no demonstrations and agitations against its demise.
What will be the constitutional solution to the present vacuum?
We cannot find any solution if we go through the letter and spirit and articles of the Interim Constitution. We cannot wait for a long time saying that there is no provision in the constitution. With a country of 30 million population, Nepal has an international personality as well. Nepal is also a member of the UN. The country cannot go for a hara-kiri. Politicians might fail but not the country. You cannot equate the failure of political parties as a failure of the country. We need to find out solutions not in the constitution but in constitutionalism. We have to make a road map under the basis of universal democratic values, constitutionalism and rule of law. We can bring such things within the ambit of the Interim Constitution. There is certain element in the Interim Constitution as this is the document prepared to manage the interim provisions. It stresses the politics of consensus. Article 43 has made it. 38.1 also envisages consensus.
How about the resignation of the Prime Minister?
Prime Minister Baburam Bhattarai has to resign as the country has to fulfill several agenda including writing constitution, holding the elections for local bodies and national parliament. I don’t think this government can do these. Even the Interim Constitution has made it clear that no person can be prime minister without being a member of the Legislature Parliament. Since he is just a care taker government leader, his role will be now to pave the way for formation of new government. Care taker government cannot fulfill major obligations. There is the need to form an all-party government with a broad base.
How about the exercise of article 158?
There is no solution from procedural article 158. This is just for power to remove difficulties. It also needs to be ratified by the parliament. Article 38 gives a broader mandate to parties. Constitution is a fundamental law of the land so it cannot be amended through ordinances. After the formation of the national consensus government, the government should be given the legislature power as was to the government of 1990 led by Krishna Prasad Bhattarai. After preparation of roadmap, it can be legitimized through the president.
What is the role of the president?
The President has three powers in the context of Nepal. Renowned British constitutionalist Begat said head of the state has three powers: right to warn, right to encourage and right to suggest. He can suggest to political parties and the government. If political parties and the government work against the nation, the president can also warn them publicly. The President is the first citizen of the nation and he is the first public opinion maker. What he speaks is the conscience of the nation. In the present context when the country’s constitutional process is defunct, the president can work as a facilitator and help to find out solutions.
What is the least damaging way out?
The least damaging way out will be to form an all party consensus government by the president as the president has certain prerogatives. The President cannot exercise executive powers but he can act as a conscience keeper of the country. Former Indian president Venkataraman says that the president house is such a place which is like an emergency light. Once other emergency lights stop, the president has to act. In this context, the president can play the role of a facilitator to bring the constitutional process back on the right track. He is a guardian of the constitution and the people.