No constitution, no consensus

Who has executive authority in Nepal’s vacuum?<br>Yubaraj Ghimire

June 16, 2012, 5:45 p.m. Published in Magazine Issue: Vol.: 06 No. -01 June. 08-2012 (Jestha 26, 2069)<br>

 Nepal currently finds itself in a deep state of constitutional breakdown. The Constituent Assembly’s failure to deliver the constitution has triggered a debate dividing the political spectrum. Does Nepal have a functional constitution at the moment? Who has executive authority: Prime Minister Baburam Bhattarai, who was unilaterally designated a caretaker PM by the president without his resigning? Or President Ram Baran Yadav, who the interim constitution of 2007 envisaged as the “guardian” of the constitution, but in the spirit of a “ceremonial” head ?


The much-hyped “politics of consensus” of the four major political parties has collapsed. Some legal experts even claim the interim constitution that had life until the delivery of the new constitution has ceased to exist. “The Doctrine of Eclipse comes into operation now, and with the CA’s failure to deliver the constitution, the eclipse over the Constitution of 1990 is automatically gone, and it is automatically revived,” says Supreme Court senior advocate Devendra Lal Nepali.



The 1990 constitution was annulled by a parliamentary declaration in May 2006 in a controversial manner and subsequently replaced by the interim constitution of 2007 that said the CA to be elected would draft and deliver the new constitution, and a new parliament would be elected as recommended by the new constitution. But political parties remained divided, and Bhattarai, instead of handing over leadership to the Nepali Congress (NC) and letting a new PM formalise the delivery of the constitution, recommended fresh elections to the CA on May 27. The interim constitution does not have the provision for holding the CA or parliamentary elections, nor can it be amended now in the absence of a legislative body.



Bhattarai and Maoist chief Prachanda blame mainly two big parties — the NC and the Communist Party of Nepal-Unified Marxist Leninist (CPN-UML) — for blocking the new constitution’s delivery by not accepting provinces on the “single ethnicity basis”. But the CA secretariat conforms that there were as many as 117 issues left to be settled. Yet, Prachanda and Bhattarai are now trying to form their future political equation by bringing the votaries of ethnicity-based federalism together.



While emotive issues, including identity, have their impact on politics, the Maoists have clearly lost the support they were enjoying from the powerful EU. EU heads of the missions met President Yadav on June 13 and asked him to take the lead in bringing the political parties together so that peace and order could be established and the constitution-making process taken forward. But Maoists have started looking at him with increased suspicion.



“I hope the president will function within the limit of the constitution,” said Bhattarai. The president assured him that he would not cross the limit, but the state of constitutionlessness on one hand and Bhattarai’s ambition to continue as a caretaker PM on the other, are complicating governance and politics. If Yadav acts and nominates a new PM, that will be the repeat of what King Gyanendra did in 2005. If he does not, Bhattarai will continue with no constitutional sanction.


Bhattarai , having no institution to be accountable to, recently decided to distribute perks and privileges to retired ministers, judges and speakers that would cost the impoverished state an extra 500 million rupees per annum in order to buy favour. His party is on the verge of a split, but Bhattarai feels comfortable as long as Prachanda is on his side. Given the many financial deals suspected to have been made on his behalf, the Maoist chief too looks to the PM to protect him.



Yet, Maoist leaders are wary of the political ganging up that shows nearly 28 of 31 political parties pitted against them. Their persistent demand is the president must restrain Bhattarai from ruling by ordinance, and have him replaced with a “consensus candidate”. The Maoists fear that a majority of parties and the army by the president’s side will be the most adverse situation they might face. “Nepal army is now under our grip, and it will not be obeying the order against us,” Prachanda said recently to his cadres. But that was countered firmly by the army saying,



“We will go by what the constitution says.”


The larger populace blames all the four big parties equally for having failed the nation and for not keeping their promise. The political and constitutional vacuum has only increased, so have people’s fear and anger.

(The Indian Express)

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