With a high degree of uncertainty looming after the four-party talks faltered on Saturday, experts of constitution say there are three possible scenarios.
First, the CA sees a happy ending with the parties finally settling their differences and promulgating a full constitution on Sunday. Second: they defer remaining contentions on federalism to be dealt by "transformed parliament" and promulgate the constitution with whatever is agreed upon so far. And third, the parties miss the deadline leading to dissolution of the CA and thus heading for a fresh mandate based on new political agreement.
In the first scenario, the parties somehow converge on any of the models discussed so far: from the six-state model floated by the minority members of the State Restructuring Commission to the 14-state model passed by the majority of the CA committee on state restructuring, or any new model agreed towards the end of the Day.
In the second scenario, the country gets a new constitution, with some unresolved issues, such as mapping, number and naming of federal provinces. The new statute replaces the Interim Constitution of 2007 and there remains an active "transformed parliament". The constitution, says former Bar President and Senior Advocate Bishwo Kant Mainali, must have a "special provision" inserted – in order to give the "transformed parliament" a constitutional legitimacy and authority to sort out the remaining issues of federalism. The new agreements on federalism will be institutionalised through constitutional amendments.
The special provision, however, will also have to fix the timeframe and the basis for the transformed parliament to settle the remaining differences along with fixing the process and deadline to hold the general elections. Any constitutional body, such as the proposed Central Federal Commission assigned to complete the remaining tasks, would be under the supervision and control of the transformed parliament, which will comprise the same lawmakers, says Senior Advocate Radheshyam Adhikari.
In the third, or the worst case scenario, the parties will continue to stick to their guns and miss the May 27 deadline. In that case CA automatically dissolves but the Interim Constitution continues to govern, says Adhikari. The Article 82, however, would allow the defunct assembly to take an interim call on future course, including to go for a fresh mandate. "In this case, the positive aspect would be the country will get a new assembly with new mandate that will decide whether or not to go for ethnicity-based federalism," says Mainali.
The caretaker government will remain for sometime but based on the "doctrine of necessity," the parties will forge a new political agreement to form a government through a presidential order. Such a government could hold CA elections, argues Adhikari. Till a new CA is constituted, the statue drafting process will stop.
Differences over status of PM in case of fiasco
There are, however, differences among the experts on the status of the prime minister and the president after the CA is dissolved as in third scenario.
In an urgent call, Prime Minister Baburam Bhattarai on Saturday night consulted with some legal experts.
Advocate Raman Shrestha suggested that next way is to go for fresh CA polls as per the first of three alternatives provided by the Supreme Court directive. The second alternative suggested by SC was to go for referendum on unresolved issues of constitution. The third option, Shrestha said, was "too vague" as it just says parties could go for any constitutionally permissible alternative.
Advocate Ramnarayan Bidari, however, told the PM that the institution of president would not exist after the CA has been dissolved but the institution of prime minister would be there. But Advocate Adhikari disagrees. "If the CA is dissolved, all the institutions formed in line with the Interim Constitution will continue to exist, though the PM would be rendered to a caretaker status," said Adhikari.
