It has been over a month since the November 19 election and the fact that the political parties have yet to be summoned to the inaugural session of the Constituent Assembly (CA) sends anything but a positive message to the people. In effect, the on-going confrontation between President Ram Baran Yadav and Chairman of the Interim Election Government Khil Raj Regmi has injected much confusion into Nepali politics. Each is prepared to battle with the other over who should actually call the first session of the new CA. The Interim Constitution of Nepal, in fact, states that it is the responsibility of the PM, in this case, the Chairman of the Council of Ministers. However, one needs to compare the circumstances in which that constitution was drawn up with those that prevail.

International practice and democratic values around the world demand that the head of state summon such a meeting. President Yadav and some of the political parties have naturally argued that global practices and conventions favour the head of state. Chairman Regmi and others choose to cite the precedent set by the first CA in ‘our own country’—that the CA was summoned by late Girija Prasad Koirala in 2008 when he was PM and also acting head of state.

Context and precedent

This political debate is now being considered at the Supreme Court. However, we ourselves should ask a few questions regarding the current ‘battle’. What, for instance, does the existing Interim Constitution—if it is still relevant and functioning—actually say about this? Is a rigid implementation of the constitutional provision possible in the changed political context? What, moreover, was the real intention of Article 69 (1) of the said constitution? Many other relevant questions also need to be asked, including what is the role of the head of state in our context? Should we not be anxious to set good precedents from the very outset?

First, Article 69 (1) of the Interim Constitution must be examined very closely. It contains a provision that “the first meeting of the Constituent Assembly shall be held, as summoned by the Prime Minister, within twenty one days of the final results of the election of members of the Constituent Assembly has been made public by the election commission”. Is it right that we should take this provision literally today as we find ourselves in a different phase of political development? If we were to follow the provision strictly, the PM would have sole authority to summon the first session of the new CA but can we say for certain that that was the real intention of the constitutional drafters? The answer has to be no.

To justify this conclusion, we have to analyse the particular political circumstances prevailing when the constitution was formulated. In 2008, the institution of the monarchy (or head of state) was suspended and during the election of the first CA, Prime Minister Girija Prasad Koirala was himself acting as head of state. The Office of the President did not even exist in the country at that time. The constitution, therefore, included a provision for the head of government to summon the first session of the first CA. Thus, it fell to Girija Prasad Koirala as PM and acting head of state to summon the first session of the newly elected grand assembly.

President, not PM

I am, therefore, strongly of the opinion that the real intent of the constitution is not that the PM should now summon the first meeting of the CA. To me, it absolutely indicates that the President should perform this task. The 2008 precedent is irrelevant in our changed political situation. It was a different political situation at that time and the drafters of the constitution had to take note of the public’s anti-monarchy sentiments of the time. Today, we have elected a President and without a doubt, he has the constitutional authority to summon the first session of the new CA. The literal interpretation of the Constitution in today’s circumstances, therefore, becomes meaningless.

Second, international practice and established political customs around the world provide that it is the head of state who summons the first session of any elected body, such as a parliament or any body of the peoples’ representatives. This is the prerogative of the President or the head of state. In our context, too, the norms of the Interim Constitution demand this and I believe, this was the real intention of the drafters of the constitution as well.

Third, in the context of our constitutional norms and values, the institution of the President is highly respected, in that it stands above politics and political controversy and acts as a guardian of the nation. The President has few constitutional roles and they are mostly non-political. I strongly believe that to gain greater respect for the dignity of the institution, the President deserves to exercise his right to summon the first session of the Assembly. The matter should never have been up for political or constitutional debate; the issue is quite straightforward.

Establishing own precedent

Finally, as a young republic, we are still coming to terms with a presidential system. We must develop worthy political traditions and customs from the outset if we wish to see the norms and values of a democracy flourish. For Chairman Regmi, the head of the interim government, to summon the first session of the new Assembly would be to establish a wrong precedent in our country. It could easily provide a basis for future conflict between the two institutions over power and authority and, most importantly, over personality and superiority. Even the present conflict between the President and the head of the interim government is little more than one of personality. For a fresh start and to establish a fit and proper tradition in our country, the President should call the first session of the new house without delay.

The nation must prepare for the grand departure of both individuals once their task is done. The new mandate demands a new face at Shital Niwas. The first CA session must be called as soon as the Supreme Court gives its verdict. The political parties must then make haste to form a new government and a commitment to formulate a fully-fledged democratic constitution within a year must become the dedicated aim of every political party and of every politician. The nation eagerly awaits this outcome.

Basnet is a constitutional lawyer

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