: Dirgha Raj Prasai
Implement 1990 Constitution to end Nepal crisis
The term of the Constituent Assembly ended at midnight of 27 May 2012, with failure to promulgate a constitution. This ended the relevance of Prime Minister Baburam Bhattarai’s cabinet, the presidential apparatus and all elements formed under the interim constitution of 2006. The President and Prime Minister, without constitutional mandate, are legally debarred from exercising any constitutional right. Despite this, the so-called President Ram Baran Yadav designated Baburam Bhattarai as the acting prime minister. How can Ram Baran Yadav who has lost his own position direct Bhattarai to continue in office as acting PM?
Baburam Bhattarai is automatically relieved of his position as prime minister and member of the Constituent Assembly with the dissolution of the latter. Despite losing his constitutional status, Bhattarai has announced dates for re-election of a new Constituent Assembly in November 2012, something for which there is no legal provision, and which requires the consent of all political parties (two-third majority of the CA was necessary before the expiry of its term).
The Constituent Assembly failed to promulgate the constitution within the stipulated time span of two years. Its term was repeatedly extended and the work of drafting the new constitution could still not be completed in four years time, climaxing with the dissolution of the Constituent Assembly. With their failure to draft a new constitution, party leaders betrayed the nation and the people.
The interim constitution 2006 that was introduced for the management of the Constituent Assembly has no meaning after the dissolution of the latter. The interim constitution 2006 stands automatically dissolved as the new constitution was not drafted in time. This means that the 1990 constitution stands automatically revived.
Nepal Students’ Union founder-coordinator, Nepali Congress leader and veteran advocate Devendra Nepali wrote in a daily newspaper, “If the interim constitution 2006 fails to draft a new constitution then it will automatically dissolve and become defunct. The existence of the political parties was accepted as per the 1990 constitution; in this sense the 1990 constitution is seen as the legal parent of the political parties. It was established by the 1990 constitution viewing the people as sovereign. The dissolution of the interim constitution will automatically revive and activate the constitutional monarchy, multiparty parliamentary system and all other organs and institutions under 1990 constitution. It is fallacious to posit a nation without a constitution when the legality of the 1990 constitution revives.”
Maoist leader C.P. Gajurel opined, “'Baburam Bhattarai is not a member of the CA, so he cannot continue as PM.”
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There are abundant examples round the world to establish that when an interim constitution collapses, the previous constitution (of 1990 in the case of Nepal) is automatically revived. After Indonesia’s independence in 1949, elections to the Constituent Assembly were held. But the failure to promulgate the new constitution within the stipulated time span compelled the country to revert to an old constitution, which was then suitably amended to serve their needs.
In Pakistan, the Constituent Assembly was elected and for five years it dabbled with the work of drafting the new con