Whether Constituent Assembly with or without a Condition
By Surendra Bhandari
Lawyer, in Japan
The country is still undergoing through a volatile political situation. The political changes induced by the people’s movement followed by King’s declaration for the restoration of the House of Representatives on April 24th 2006 has unfurled immense opportunities to move ahead but the path is still full of challenges and risks. The issue of whether a constituent assembly should be with or without condition has become a center of the political dynamics in the country.
Maoist has declared cease fire with a hope that the Parliament shall declare constituent assembly without any precondition. Many civil society leaders have also asked the same thing. All the political leaders of the SPA have confirmed that constituent assembly will be the single most priority agenda item of the (to be restored) Parliament. But they have not yet declared whether it will be with or without a precondition. Indeed, the leaders are at altar now. If they succeed, they come off with a light and become able to enlighten the society otherwise there is a risk that they will burn out the fire of the altar. If they fail that will be a big boomerang both for the democratic process in the country as well as to the leaders.
A number of questions arise in this context. The first question is: can Parliament alone declare constituent assembly without consent or approval of the King? Can constituent assembly be declared within the framework of the constitution without amending it? Should the amendment be approved of by the King? Above all, the most important question is that can there be a constituent assembly without any preconditions (grund norms)?
Let us briefly examine each of these issues.
Can there be a constituent assembly without any preconditions?
This is not only a political question but importantly a constitutional issue, if one looks this question from only political angle and interest the answer might be very much ad hoc, emotional and unproductive to the country.
Constitutionally speaking, even imagining an original position (in Rawl’s terminology) the contractors assemble bearing a purpose in their mind for setting a just and fair system where they will be secured and their progress is guaranteed. Dignity, security and happiness are not compromised even in the original position. We are not in an original position. The Parliament is deciding constituent assembly in a complex social, political and constitutional backdrops. Parliament is the supreme legitimate authority in the country but it cannot deny basic original positioning of citizens that are found in human rights and fundamental freedoms. In other words, Parliament cannot assume authority to deny democracy, human rights and fundamental freedoms. Democracy is the foundational stone of constitutionalism, where from authority, legitimacy and validity emerge.
Against this background, the Parliament has no right to announce constitutional assembly without recognizing democracy as a basic form of governance in the country. It cannot leave the country into a future that is full of uncertainties. If the constituent assembly is not for institutionalizing democracy in the country it impudently violates primary rules (legitimacy) and the secondary rules (enforceable rules) and the result will be indistinguishable from any form of absolutism and anarchy. Maoist must understand these basic values. If they are still intransigent they should be under a fit of violence upholding animosity towards democracy. But conscience of any reasonable Nepali now believes that the Maoist knows the basic rules of the game and accepts democracy as the foundational stone of future framework of the Nepalese society. Maoist should not betray the conscience of the Nepalese people.
Recalling the people’s movement and its euphoria one cannot deny the fact that the movement was for liberal democracy in the country. It was not for uncertainty. The Parliament is restored by the people for democracy and nothing else but for democracy. The people found the past constitutional structure a faulty one and have demanded new constitution to be framed by their meaningful participation – constituent assembly. This political reality does not support any logic or argument for a constituent assembly without democracy as its fundamental principle or constitutionalism.
Unconditional constituent assembly should have one practical meaning – the contents of democracy should be open and the people alone can decide the content and structure of democracy. We believe the Maoist demand is for content openness and not for denial of democracy itself. If Maoist does not prevaricate from the fundamental truth there should be no bickering for accepting democracy as the gurnd norm of constituent assembly. When one looks the practices of constituent assembly around the world, one can easily notice that no constituent assembly is purposeless or castigated for absence of underneath principles.
Talking from the political geometry of the country, the country is still a monarchical one. It is still not a republic one despite the popular euphoria in the country. The fact is that King is a head of the state. The borderline of democracy is rules following – rules based practice.
Therefore, in the present context, the constituent assembly cannot be declared by Parliament alone but the King should declare it. If the Parliament declares a republican state first and then declares constituent assembly it may be a different case otherwise until the King remains as a head of the state the constituent assembly cannot be declared alone by the Parliament. When King has to declare the constituent assembly he definitely seeks his stake. If it is to be denied, there should be a preparation for a final fight between the King and the people. It again leads the country into another cycle of revolution and counter revolution. To be emotional is one thing and to be hardheaded is another thing. Now, only a dispassionate and hardheaded move of the Parliament can rescue the country from recurrence of violence and conflict in the country.
In this context, Parliament should start exercise to have an agreement between the King, Maoist and SPA for building and accepting fundamental principles of constituent assembly before declaring it. Work though noble can be may not bring result at haste. Accept Democracy and Ceremonial Monarchy as the basic fundamental principles of constituent assembly because that only has prospects for moving ahead, avoiding cycles of violence and conflict. Don’t define the contents of Democracy and Ceremonial Monarchy, let the people define them. This can only mean for unconditional constituent assembly.
Dr. Surendra Bhandari is a lawyer, currently working as a think-tank in the United Nations University, Institute of Advanced Studies, Japan.