Kathmandu Post


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Three for the road

NOV 08 - Nepal’s Interim Consti-tution is as good or bad as Article 127 of the outgoing constitution of 1990. It was this article that swung the destiny of Nepal from a functioning parliamentary democracy to an absolute monarchy. It was made possible by the political deadlock similar to the one that obtains today. The Interim Constitution established a republic, but did not forestall the danger, as under the current stalemate, of taking the country to an extremity as did its predecessor. There is a constitutional standstill following the dissolution of the Constituent Assembly like the one that occurred in 2002. The Baburam Bhattarai government can draw a parallel between the 2002 Deuba government as far as constitutional legitimacy is concerned.

The 1990 constitution did not spell out a clear path to move forward in case of a constitutional impasse as is the case with the Interim Constitution now. The existing constitution has no readymade solution to the political deadlock we are facing today. In 1990, there was a political agreement to ask the king to invoke Article 127 to restore the democratic process. But now there has been no such agreement. Even if there is one, there is no guarantee of its implementation. The three political parties and the Madhesi Morcha have no constitutional authority to decide the destiny of the country at this point because they have lost the people’s mandate to do so with the demise of the Constituent Assembly.

In 2002, constitutional pundits were unanimous in their opinion about breaking the political deadlock under Article 127. However, they differed on how far the king could go to resolve the constitutional impasse. The bottleneck arose from the untimely dissolution of Parliament paving the way for a new election that could not take place due to the armed conflict. There was a political accord to ask the king as the head of state to invoke Article 127 to restore democratic process. But instead of listening to the political consensus, the king swayed the destiny of Nepal back to 1950 when his grandfather was on the throne exercising all state powers. Nepal changed its providence in 1959 when it adopted a full-fledged parliamentary constitution

which became a scrap of paper the following year in 1960. It took 30 years to swing back to a parliamentary system in 1990.

But again in 2002, things went upside down. It was yet another out-of-constitution roll that swept the country in 2006 to the other end of republicanism. In 2012, the country faces the same old gridlock whether to move this or that way. It is caught between democracy and communism.

In fact, the Interim Constitution throws the doors wide open on all sides. It has technically recognised two seats of power, the president and the prime minister in the absence of any legislative body. But what powers they are supposed to exercise is not clear. One is described as the guardian of the constitution and the other as the executive head under certain prescribed circumstances. What does a president without executive power mean when he is designated the guardian of the constitution? The Interim Constitution has no answer. What does a prime minister with executive power mean when the president can reject his recommendations? The Interim Constitution again is mum. What this essentially means is that the president is free to act in any way and to any extent that his courage and strength allows him to. The Interim Constitution says to the president neither “do this” nor “don’t do this”.

Similarly, the prime minister can go to any extent of using his power in the capacity of an executive head. The Interim Constitution neither inspires nor prevents him from doing what he wants to do or dares to do. It all depends on their personal courage to do or not to do something. The reason why neither of them has done anything to take the country to one or the other extreme is that both of them are equally weak. In that sense, they have been wise enough not to move in a manner that they cannot control.

Nepal swings back and forth not just through internal dynamics. It is caused equally or more than equally by external power play. India had played a direct role in Nepal’s political changes in 1950, 1990 and 2006. In that sequence, India should have logically played a role to extricate Nepal from the current political deadlock. But over the years, the role of India has also weakened in Nepali affairs because China has come forward to show its keen and active interest in Nepali politics.

The new constitution could not be issued because India and China had a concerted objection to federalism based on ethnic considerations. However, it is evident that China is not interested in playing an interventionist role in Nepal. But we know for sure that Nepal cannot do anything internally or externally that will anger or antagonise China. So taking India and China in good faith and respecting their legitimate interests, Nepal should go for a trilateral solution to Nepal’s woes of instability and suffering, constitutional or otherwise. A trilateral understanding should be achieved with trilateral institutions in place. Until we face this reality and act upon it, we will remain bogged down in unending haggling over “power” first or “political agreement” first.

Posted on: 2012-11-09 08:58

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