Nepal: Unique Constitutional Crisis – Analysis

On the midnight of 27th May 2012, Nepal plunged into a strange constitutional and legal crisis when the term for the interim parliament automatically expired in the absence of a fresh constitution and a fresh mandate. With that would go the Prime minister and his cabinet.

Strangely, an hour before midnight, Prime minister Bhattarai convened his cabinet and made a proclamation for fresh elections to the Assembly on 22nd of November this year. He also declared that he would continue as Prime minister to conduct the elections.

It is claimed by Bhattarai that he was justified to call for fresh elections as it was one of the suggestions given by the Supreme Court in its verdict of November 25 when it dismissed the petitions of both the prime minister and the speaker seeking further extension of the constituent assembly.

When attempts were made on the eve of the expiry of the deadline to give another three months of extension to the Constituent Assembly, the Supreme Court reacted strongly in not only directing the government not to proceed with its decision to extend the term of the CA but also summoned both Prime Minister Bhattarai and the Chairman of the UCPN (Maoist) Dahal for “contempt of court.” To some analysts it looked like a “judicial overreach” and the question was whether the Supreme Court would take the responsibility if there was a total breakdown of the state in a constitutional vacuum? Would it have been acceptable if the Army had to step in? These are serious issues.

By the middle of May, there were 117 contentious points relating to the constitution that had to be resolved. Surprisingly the three main political parties along with the Madhesi Front managed to narrow down the difference and even complicated issues like the division of powers between the directly elected President and the Prime minister elected by the parliament were resolved to the mutual satisfaction of the parties concerned.

But where the government went wrong was in hurriedly accepting the division of the country into 11 multi ethnic provinces without ascertaining the demands of the majority of the affected persons – here the Janajathis and the Madhesis. The latter rightly demanded and later supported by the Maoists and the UDMF ( United Democratic Madhesi Front) that the federal provinces should be either 14 as recommended by the constituent assembly thematic committee or 10 as per the suggestion of the State Restructuring Commission.

Strange it may sound as to how the two Madhesi leaders Gacchadar and Mahant Thakur agreed to divide the country into “non ethnic” provinces. Were they not aware of the feelings of those in the Terai? Could they have faced the electorate in their traditional constituencies with a division of the provinces reminiscent of the divisions made in the Panchayat days?

Both the mainstream political parties as well as the 601 members of the constituent assembly who gave themselves extension for two years should be blamed for the current fiasco. Were they not aware that the fundamental issue of “identity based” federal units in the new constitution should be resolved first? Those representing the far west and the south are in for some cold reception from the people over there when these people return to their constituencies and it could be worse if they were to seek votes from those people for re election.

Some analysts feel that both the Nepali Congress and the UML could have been a little more “flexible” in going along with the ethnicity-based provinces to meet the dead line and avoided taking the blame for the current stalemate. The Maoists have outwitted them first by agreeing to the division of 11 provinces and later going back on the commitment. The Bhattarai led government agreed to everything that the agitating ethnic groups demanded first with the janajathi entities on the 22nd and a day later with Tharus and in both the first point of agreement was on “ethnicity-based federalism.”

It is still not clear how the constitutional “tangle” is going to be resolved. Unfortunately the interim constitution did not envisage a situation of the assembly being unable to come up with a fresh constitution!

There are only two articles that are relevant to the current crisis. One is Article 63 which specified two years for the CA and this was amended four times and the attempt to extend it for the fifth time was thwarted by the Supreme Court. The other article is that of 158 that states that if any difficulty arises in connection with the implementation of the constitution, the President on the recommendation of the council of ministers may issue orders to resolve it with the proviso that it has to be endorsed by the parliament within a month. Here the parliament does not exist!

Bhattarai automatically becomes a ‘care taker’ prime minister but he would lose credibility if he is unable to rope in ministers from all the stake holders. He has said that he will not resign but he can continue only at the pleasure of the President and not other wise. He has to rope in the other two main parties the NC and the UML who are justifiably aggrieved now.

It is sad that the main losers in the whole episode have been both the Nepali Congress and the UML. They will have to work out a strategy in the next few months to at least retain what they had in the previous assembly and even this may be tough.