when the party leaders agreed on it. He consulted six retired chief justices, who
poured cold water on the idea, one of them telling him that the only possibility was
to summon the CA as legislature to amend the IC to prepare for new elections.
And even this step required consensus among the parties, under the IC.^8 It was
reported that the other major parties would not talk to the Maoists other than about
forming a government of national unity – a new government was eventually formed
in March 2013.^9
Amending the IC
An amendment of the IC can be passed by the CA sitting as the legislature if it is
voted for by at least two-thirds of all the existing members. Since members of
parties are subject to party discipline, and because all important decisions are taken
by party leaders, the leaders of the three main parties have been able to change the
IC at will, on several occasions, including, as we have seen, to extend the life of the
CA. The use of this procedure has somewhat devalued the IC and its image as a
supreme constitutional document.
Normally, an important function of an IC is to entrench decisions in the road
map, and in this way to give to the people a sense of security and predictability
about the process. While there is an advantage to having a flexible IC, that
flexibility is only desirable for provisions that pertain to the interim arrangements
rather than for the road map to the new constitution. A culture of changing the IC
may allow more dissatisfied groups to advance their own claims for amendment.
Yet it is unlikely that this ‘flexibility’ is good for the overall process – and so it has
turned out to be, as shown above.
Nor is the procedure whereby these changes are negotiated good for the process.
These negotiations took place between the four major political groups – Congress,
UML, Maoists and Madhesi Morcha – on the one hand and the ‘agitating’
community on the other. Negotiations of this sort are inconsistent with the
notion of a CA, where all interest groups get together to examine all claims and
to settle differences. This mode of negotiation also gives the impression that it is
within the authority and grace of these groups (for the most part representing the
old elite) to make concessions to the marginalised communities – thus reinforcing
forms of relations that are to be eliminated. This is, of course, not to deny the
substantial following of these four groups, and that their views are bound to have
major influence on CA decisions. However, the philosophy of the IC is
inclusiveness.
(^8) ‘Former CJs brush off CA revival idea’,Kathmandu Post, 29 October 2012. The wisdom of
the CJs has not been followed later (see below).
(^9) See the final paragraph below.