The Constituent Assembly (CA) was dissolved without fulfilling its main responsibility of promulgating a constitution. Despite trying for four years, the political parties could not draft it. Towards the end, mainly UCPN (M), Nepali Congress, UML, and UDMF had held discussions on the disputed issues of constitution-drafting. However, there was no concrete outcome. Although the parties had reached agreement on forming federal states on the basis of identity and capability, there was sharp division on whether to name them based on a single ethnic or multi-ethnic identity. UCPN (M) and UDMF were in favour of single identity while Congress and UML were for multi-identity. When there was no consensus on this, the parties discussed alternatives. There was no agreement among the parties on this. The CA could not even sit because there was no agreement among the parties. As the discussions were going, deadline was nearing. In the meantime, prime minister Baburam Bhattarai announced a new election to the CA on November 22, 2012, and the CA deadline passed.

Political Issues:

1. Blames and Counter-blames among the parties: With the declaration of a new date for CA elections, the dispute among the parties deepened. The ministers from UML and Rastriya Prajatantra Party resigned. There were blames and counter-blames. After the dissolution of the CA, leaders from Congress, UML, MJF, Sharat Singh Bhandari of MJF (Democratic), co-chairperson of Rastriya Janashakti party Prakash Chandra Lohani submitted a memorandum to the President at his office. the memorandum states ‘instead of making necessary amendments in the CA and other provisions for new elections to the CA, the government has displayed a totalitarian character’, and ‘the prime minister has dissolved the unique and inclusive and proportional CA. it has become clear that by dissolving the elected CA the prime minister is intent on capturing the state through authoritarian means’.

UCPN (M) chairperson Pushpa Kamal Dahal blamed Congress and UML for dissolution of the CA. ‘In brief, we had fought for people’s constitution against feudalism and imperialism. And this became the focus of the differences over the establishment of federal states with identity. Unitarians and egregious conservatists and status-quoists who did not want the country to become federal with identity did not let the CA become successful.’ UCPN (M) chairperson Dahal made the accusation that ‘Colleagues from Congress and UML were unable to understand the essence of federalism and could not. They do not understand that federalism is needed to end discrimination in Nepal, and become alarmed at the mention of federalism. This was one of the problems’.
On the other hand, Congress accused UCPN (M) of nitpicking. ‘We proposed four states in the hills by combining two identities based on locations of Limbu and Rai, Newar and Tamang, Gurung and Magar, and Sija Dotyali civilisations. Our argument was that this would fulfil the consensus reached on two basis of federalisation: identity and capacity.’ Congress states, ‘However, UCPN (M) ignored both identity and capacity and impetuously proposed 14 states with eight states in the hills based on single identity and two states in the Tarai based on joint identity, which is totally impractical and unbalanced’.
Prime minister Baburam Bhattarai stated that the CA was dissolved due to the conflict between progressives and status-quoists. UML accused the UCPN (M) of being the main culprits behind the dissolution of the CA. in the press conference, UML stated, ‘The decision (to dissolve the CA) was not unforeseen, unavoidable, or unexpected. This is only expression of UCPN (M)’s authoritarianism, and it is seeking to fulfil its agenda through this dissolution what it could not achieve through guns, while Prachanda was prime minister, and through the so-called urban insurrection’.
Congress also accused UCPN (M) of dissolving the CA in a conspiratorial move. Congress stated, ‘With the premeditated intention of UCPN (M) to capture the state, popularly elected was dissolved prematurely, and the one-sided deceitful announcement of the election date without consulting the CA, legislature-parliament, seeking political consensus, and bypassing the constitutional provisions has pushed the country to constitutional and political precipice and the move is unconstitutional, regressive, and autocratic’. Also, UCPN (M) vice-chairperson Mohan Vaidya and general secretary Ram Bahadur Thapa accused the senior leaders of their own party for chiefly being responsible for the CA dissolution.

1. Polarisation among the parties: On the constitutional issues, UCPN (M) and UDMF were in one camp and Congress and UML in the other. Immediately after the government announced the date for the election, there was sharp polarisation among the parties. Congress, UML, Madhesi Janadhikar Forum, Rastriya Janashakti Party, and Madhesi Janadhikar Forum-Loktantrik (Sharat Singh Bhandari) immediately united against the decision of the government. on May 28, Congress, UML, RPP, Rastriya Janashakti Party, Rastriya Janamorcha, UML (ML), Chure Bhawar Rastriya Ekata Party, and Nawa Nepal Nirman Party held a meeting. The meeting opposed the UCPN (M) and the government’s move, ‘After the agreement to promulgate the constitution by including the agreed issues and when there was a draft proposal to prepare appropriate constitutional provision to amend the constitution to settle the remaining disputed issues by the transformed parliament or through new elections, the meeting objects to dissolution of the CA through suspicious and conspiratorial move by the Council of Ministers by keeping the parties and CA members in the dark’.

The opposition became more active against the government move. In a meeting held a day after the dissolution of the CA, 15 parties participated. It accused the UCPN (M) of being the main culprit for dissolution of the CA and decided to launch campaign against the government and to seek a national government to hold the elections to end the political impasse. Another meeting on the same day of the ruling parties was attended by 16 political parties. The meeting welcomed the government’s move to hold the elections, ‘The decision is constitutional, democratic, and as per the decision of the Supreme Court. We welcome it and conclude that the government was obliged to hold another constitutional election to seek a mandate from the people’. After the ruling parties stressed on elections, the oppositional parties decided to launch street movements. Along with the parties, different organisation and institutions also stood in favour and against the government decision to announce elections.

Who is accountable?
After the dissolution of the CA, the political parties and their leaders should have taken moral responsibility without any hesitation, instead, not all the parties accepted their weaknesses. Prime minister Baburam Bhattarai who had declared new elections expressed sadness for failing to draft the constitution. He said that he was responsible only for himself, ‘As a responsible member of the CA, responsible leader of a party represented in the CA, and as the chief executive of this period, I ask for forgiveness from all Nepali brothers and sisters for failing to promulgate the new constitution for my role in it’. UCPN (M) chairperson Dahal also asked for forgiveness, ‘It is not our opinion that we are not without faults in this debacle. We have made mistakes. We ask forgiveness from the people. And, we want to fulfil our responsibility by going to the people for another election’. The ruling parties only expressed sadness at dissolution of the CA.
Congress and UML which had been accusing the UCPN (M) for dissolution of the CA did not accept any weaknesses on their part. CA chairperson Subash Nemwang and chairperson of the Constitutional Committee Nilambar Acharya also did not take responsibility for dissolution of the CA. UML leaders Pradeep Gyawali and Usha Kala Rai expressed their responsibility through the media. Gyawali has written, ‘We could not give you a new constitution. The supreme achievement of 75 years of democratic struggle, this supreme institution of our dreams, we could not master this art of charting a future course for Nepal. I have been deeply hurt by this painful moment of my life. As one of your representative, I offer my folded hands to you and self-criticise for having disappointed you’.

Constitutional Issues

1. Dispute over Prerogative: After the dissolution of the CA, dispute arose over the prerogative of the executive. In a press conference at Baluwatar, prime minister Baburam Bhattarai claimed that executive powers were vested in him. He said, ‘According to the Interim Constitution, executive powers lie with the Council of Ministers. Executive powers clearly lie with the Council of Minister in the Interim Constitution. Therefore, I do not think there is any difficulty. The Council of Minister under my leadership will hold the election using the executive powers. The Constitution also mandates this’. Then, the prime minister claimed that executive powers are vested in him. 

UML did not accept that position. UML concluded, ‘The government led by UCPN (M) has lost its legitimacy constitutionally and politically as it has pushed the country to the brink when it was appropriate to retain the elected representatives and to seek a new mandate through a constitutional process’. Then UML chairperson Khanal declared that the elections cannot happen on the announced date. He said, ‘Our party wants to make it clear that it is our conclusion that the when the CA has been dissolved and the present government is only a caretaker and this government cannot hold CA elections by meeting the present challenges’.
Congress central working committee concluded that the government had lost its legitimacy. ‘The prime minister should quit government by resigning immediately and he and the Council of Minister do not have any constitutional and political legitimacy to remain in power’. Oppositional coalition also concluded that the prime minster had no constitutional and political legitimacy, and stated, ‘The prime minister is only a ‘caretaker’ as he has lost constitutional and moral legitimacy and his declaration of the election has hurt the rule of law and constitutional process’.

Though the oppositional coalition had asserted that as the CA was dissolved, the government had lost political and constitutional legitimacy, but UCPN (M) chairperson Pushpa Kamal Dahal was not ready accept this argument. He said, ‘I think this is not an issue constitutional crisis. We should not be in confusion. There is no constitutional crisis at the moment. We could not draft a constitution in four years, the Supreme Court ordered not to extend the deadline and seek to a new election, and then we have done that. So where is the constitutional crisis in this? This is nonsense. There is no constitutional crisis’.
Representatives of different parties and organisations had met the President and asked him to remove prime minister Baburam Bhattarai. Opposition parties in a memorandum to the President had requested him to take appropriate action as per article 35 (a) of the Constitution to preserve and follow the Constitution. They also requested the President to take steps to form a national consensus government. in his reply, the President said, ‘There is no parliament and the CA at the moment. I can ask the CA speaker, but he has been relieved off the post as per the constitution, and there is no speaker at the moment. I cannot go outside the constitution’.

The President in the meanwhile made it clear that in the absence of the CA and parliament, the post of the prime minister is automatically void. The press statement from the office of the President contains the phrase ‘There are four instances when a prime minister is relieved off his post as per the article 38 (7) and the sub-article of that section mentions “if he/she is not a member of the parliament”’. It further went on ‘Pursuant to the above, when the CA and legislature-parliament are no longer in existence, and the prime minister duly elected as a member of the parliament, the membership of the then CA member Honourable Dr Baburam Bhattarai is also null and void along with the dissolution of the CA’. Since article 38 (9) of the Interim Constitution 2007 mentions ‘if a prime minister is relieved from his post as per article 38 (7), the same Council of Ministers will continue to function’, the on President asked the Council of Ministers constituted on 29 August 2011 under the then member of the CA, Honourable Dr Baburam Bhattarai, as per article 38 (9) of the Interim Constitution, to conduct day-to-day activities until another Council of Ministers is constituted. After that, opposition parties have been demanding the resignation of the prime minister.
The present confusion has arisen due to the lack of clear provisions in the Interim Constitution 2007 to address the present situation. There is a sharp friction between the ruling coalition and the opposition parties. Therefore, there is a need for a new consensus again among the parties to politics back on ‘track’.

Major Developments