Almost six years of constitution making have already passed without resolving the major contentious issues. Why have those issues not been resolved? Political leaders, Constituent Assembly (CA) members, media, lawyers, and civil society members all have the same exclusive answer: there is no political consensus among the top leaders. And the CA Chair keeps demanding consensus from the leaders repeatedly. Sometime back, the CA Chair overstepped his constitutional authority and even expressed his desire to produce a draft all by himself. In this article, I would like to discuss the nature of consensus in constitution making and the authority of the CA Chair.

Seventieth article

Article 70 of the 2007 Interim Constitution has already established the meaning of national consensus. The Article further prescribes what consensus is and how it should be achieved. To put this point more clearly, top leaders are constitutionally required to build consensus respecting Article 70(3) after following the processes under Article 70(1) and 70 (2). By adopting the following measures, the constitution-making process can be brought back on the track. They are as follows:

Article 70(1) requires the CA Chair to open the CA plenary to allow any interested CA member to propose a constitutional bill. The CA Chair and the political leaders cannot overstep this authority of the CA members. So the present deadlock is simply the offshoot of the denial of the CA’s autonomy.

 Furthermore, Article 70(1) does not require the constitutional bill to be submitted before the CA plenary for discussion only after political consensus is achieved among the top leaders. The application of Article 70(1) cannot be ruled out by the failure of the CA committees in producing a consensus document either. It also envisages the possibility of multiple bills to be tabled before the CA. It requires opening discussions on each article and the preamble of the proposed constitutional bill and their endorsement by voting in the CA plenary. The CA Rules and Procedures confirm this process. In fact, the establishment of different CA committees, except the Drafting Committee, was constitutionally unnecessary and politically unwise because they defeat the purpose of Article 70(1) and prevent the wider participation of the CA members in making the constitution.

Article 70 (2) then logically stipulates that voting on the preamble and each article of the constitutional bill should be passed by consensus. However, consensus does not mean the idealistic consensus of all members of the CA. Consensus will be constitutionally achieved if at least two-thirds (401) of the total members of the CA attend the CA meeting and approve the provisions. Remarkably, consensus envisioned by the constitution does not refer to consensus among the top leaders, but of the two-thirds members of the CA. What is more, the way political consensus is projected as to be a hundred percent or total agreement among the political leaders or all CA members, or at least among the major political parties is constitutionally erroneous and politically impractical. The two-thirds approval stands for consensus which can be autonomously reached by the CA members.

Time-bound deals

The Interim Constitution is also aware of the possibility of failing to reach consensus by two-thirds in the CA. Thus, Article 70(3) requires the ‘parliamentary party leaders’ to hold consultations. The Constitution, however, does not allow an open-ended consultation. Under the Article 70(4), the leaders should work out a consensus within 15 days from the failure of the Article 70(2) in reaching consensus. When leaders begin consultations, they must conclude it within seven days under Article 70(5). If the leaders fail to reach consensus, the CA resumes a voting process, ipso facto, and may pass the preamble and articles by a two-thirds majority (268 votes) of the two-thirds CA members (401) attending the voting.

So the unruly political culture of leaders can only be unpacked under Article 70 of the Constitution, which is the only legitimate way of writing the new constitution.

Chair’s role

With regards to federalism, another contentious issue, the Maoist party is already a winner, as Nepal has already been legitimisated as a federal republic. The question about the number of provinces, as such, cannot be decided scientifically. It should be based on practical convenience and efficiency. Moreover, it is not a one-time job. Whatever number is fixed now will be subject to future political dynamics. Therefore, it would be wise for the Maoists and other political parties to respect the process of Article 70.

It is high time that the political actors demonstrate their faith in democracy, as a truly legitimate process of democratic constitution making can only start with the invocation of Article 70, which has not yet happened. With the Article 70(7)—if none of the members votes against the preamble or any article of the constitutional bill, then consensus shall be deemed to have been reached—in place, all responsible CA members should take active participation in the discussions and voting. As the discussions would be of historical importance, each participant member in the CA should present one’s views in writing for historical record. Such scholarly discussions matter much more than the ideologically overpowered arguments because ideology often does not tolerate constitutionalism.

Lastly, the role of the CA Chair is critical. The Chair has the authority to invoke Article 70, but not to draft a bill by himself. If the Chair declines to invoke it, the Chair deliberately violates the Interim Constitution and misuses authority. By invoking Article 70, the Chair could also solve the enigma of its non-invocation under the first CA.

Bhandari is a lawyer and the author of the book ‘Self-Determination and Constitution Making in Nepal’