Why is everyone talking about Subas Nembang?Nembang, who oversaw constitution drafting as Constituent Assembly chair, is heard in a 2019 video clip saying constitution does not allow House dissolution. But he hasn’t called Oli’s move unconstitutional.
Subas Nembang is a lawyer. But he has made his career in politics.
Nembang, who has not lost any election since 1990, reached the pinnacle of his political career after he got the opportunity to chair the Constituent Assembly—twice—from 2008 to 2012 and then 2013 to 2015, until it delivered the constitution.
Lately, Nembang has become a talking point, especially since Prime Minister KP Sharma Oli decided to dissolve the House of Representatives on December 20.
On Wednesday, a video clip that went viral once again put the spotlight on Nembang.
In the video clip, posted on Twitter from the handle jspanepal, which in its bio says “official twitter account of Journalists' Society for Parliamentary Affairs”, Nembang is heard explaining why the provision of not allowing a prime minister to dissolve Parliament on a whim was inserted in the constitution.
“[In the past] whenever a prime minister was angry with lawmakers, he used to dissolve the Parliament. We removed that [provision] and now the prime minister cannot dissolve as we have excluded that provision,” Nembang is heard saying while speaking at a function organised by the Parliament Secretariat at Dhulikhel in July 2019.
“We wanted to include polling dates [also in the constitution] like the fixed date for the fiscal budget. But we did not [do so] because once it is written polls must be held on a certain date, and that may not be possible at times.”
After dissolving the House, Oli has called snap polls for April 30 and May 10–a year and a half earlier than the scheduled general elections.
Nembang, a leader of the Nepal Communist Party, these days is known as one of the key persons in Oli’s orbit, playing the role of, in effect, Oli’s legal counsel.
Though Oli’s December 20 decision to dissolve the House has received widespread criticism, with political parties and experts on constitutional matters describing it as extra-constitutional, Nembang has not made any public statement on the matter yet.
According to critics, the constitution does not allow Oli, as a majority prime minister, to dissolve the House, but Nembang has remained tight-lipped on the matter.
On Wednesday evening, when the Post reached out to Nembang, he refused to speak on the House dissolution issue.
“I cannot talk on a case sub judice [in court] as directed by the constitution,” said Nembang, hinting at Article 105 of the constitution and referring to the writs filed against the House dissolution.
Article 105 under the title “Restriction on discussion” states: “No discussion shall be held in either House of the federal parliament on any matters that may cause adverse effect on the dispensation of justice on any cases which are sub judice in any courts of Nepal and on any judicial acts done by judges in the course of performance of their duties.”
Nembang’s silence, however, has left many intrigued. Even when Oli is publicly making claims that the House cannot be restored, despite the case being heard by the court, Nembang, who is well-versed on constitutional and legal matters, has chosen not to talk.
As many as 13 writs against Oli’s House dissolution move are currently being heard by the Constitutional Bench of the Supreme Court.
On Wednesday morning, Nepali Congress leader Gagan Thapa took to Twitter to question why Nembang has refused to say a word even when Oli’s move is prima facie extra-constitutional.
“I am thinking of Constituent Assembly Chairman Nembang who knows very well the letters of the constitution, the spirit they carry and the wide-ranging debates that had taken place,” Thapa wrote on Twitter.
“I had assumed that in such a time of crisis, my chairman would stand before the court and argue that ‘the House dissolution by @PM_Nepal is unconstitutional. The constitution that was written under my chairmanship does not have that provision and there is no legislative intent like that’.”
Thapa has charged Nembang with hiding somewhere fearing someone will ask him anything [in that regard] and running away from questions.
“I pity my chairman for not speaking a word and showing this level of ‘helplessness’ when a coup has been committed on the constitution that was brought right under his leadership,” added Thapa.
Since Nembang twice led the historic Constituent Assembly until it produced the constitution, he is still known as the “chairman of the Constituent Assembly”, assuming that there won’t be any similar assembly in the future, meaning he does not need to be addressed as “former chairman”.
Those who were deeply involved in the whole constitution drafting process remember Nembang as a person who could conceal even some sinister motives behind a facade of smiles.
Nembang, as the chairman of the Constituent Assembly, played a crucial role in getting the constitution promulgated despite opposition from Madhes-based parties.
Many say despite holding a non-partisan office, Nembang played along to appease his political masters, including Oli who is known as the one who rushed the constitution with the backing of then prime minister Sushil Koirala and Pushpa Kamal Dahal, then chairman of the CPN (Maoist Centre).
After the demise of the first Constituent Assembly, which also doubled up as the legislature parliament, Nembang once declared that he would return to the courts as a lawyer. But when the election to the second Constituent Assembly was declared, Nembang was quick to return to his party–the CPN-UML. He ran on the ticket of then CPN-UML and won. He became the Constituent Assembly chair again.
He fought the 2017 elections again on the UML ticket. He won, but he has not held any public post. He was elected the deputy leader of the Parliamentary Party.
According to insiders, Oli had tried his best to reinstate him as the House Speaker but that could not happen because there was pressure from his opponents Pushpa Kamal Dahal, Madhav Nepal and Jhala Nath Khanal.
Khimlal Devkota, who worked closely with Nembang during the constitution drafting process, recalls Nembang as someone who played a “very technical role” as the chairman of the Constituent Assembly.
“Actually he was never positive on issues like state restructuring and inclusiveness,” Devkota, a Central Committee member of the Nepal Communist Party close to the Dahal-Nepal faction. “In the constitution making process, Nembang’s role was more managerial.”
Nembang’s dilemma is understandable, as he is close to Oli, according to Devkota who himself is a lawyer.
“He knows that constitutional provisions, which were finalised with his full knowledge, do not allow the prime minister to dissolve the House,” said Devkota. “But he cannot cross his master and defy his master’s orders.”
Though there are some who believe Oli took the decision to dissolve the House in close consultation with Nembang, as he is known as a master of interpreting legalese, those close to Nembang say Oli made a sudden move, catching even people from his own orbit by surprise.
According to some leaders from Nembang’s circle, he had been telling Oli that the constitution does not give any space for the prime minister to dissolve the House.
“I still hold my previous stance that the constitution has left no room for a majority prime minister to dissolve the House,” a leader close to Nembang quoted him as saying.
According to insiders, Nembang had even advised Oli that the dissolution was not possible.
Devkota believes that Nembang may have advised Oli but his advice could have been ignored by Oli.
“I think none of the leaders close to Oli were aware of the House dissolution move, as Oli did not inform them, let alone seek suggestions,” Devkota told the Post. “With the video clip now surfacing on social media, it is understandable that Nembang must be under immense pressure.”
To the Post’s query if he would like to say something on the House dissolution move, Nembang insisted that everyone should wait for the court to come up with a decision.
“I will make my points clear,” said Nembang, “only a day after the Supreme Court issues its verdict.”