Nepal’s Political Crisis: Pursuing Solutions

It should be realised that inclusion of non-elected persons in the government is a gross violation of the principle of representative democracy. But the first republican government of Nepal included a number of non-elected individuals in the cabinet.

By Dr Katak Malla

In the aftermath of Prime Minister Pushpa Kamal Dahal’s resignation, Nepal's opposition parties are calling for a new national consensus, a rhetoric which restates the obvious. Rhetoric aside, this is especially true from the point of view of the ongoing tussle between the caretaker Prime Minister Dahal and President Ram Baran Yadav - a strange two-headed hydra that is now of ‘the Nepal’s government’. The tussle has erupted into a serious constitutional crisis when Prime Minister Dahal dismissed the army chief and President Yadav reversed the dismissal, reinstating the army chief. The President’s move led to the Prime Minister's resignation. In the current Nepal's economic division between an extreme poverty of rural masses and unjust enrichment by a few unban elites, Dahal represents the left political landscape while Yadav’s comes from rightwing political spectrum. Consensus is also urgent given to the volatile situation of ‘one state with two armies’, i.e. Nepal army and Maoist PLA, elites' and underdogs' armies respectively; fighting war against each other a few years ago. But the question is: how should the consensus be reached through?

Constitutionalism is the key for the consensus building. No matter whether Nepal will have a new national coalition government or a coalition-of-the-willing in a few days or weeks, some constitutional principles must be made clear and strictly followed. First and foremost, the principle of "No Taxation without Representation" must be established once and for all. Secondly, at this juncture it needs to be determined whether the Presidential system of government is more desirable than the present executive Prime Ministerial system; and thirdly, above all sovereignty of the people must be realised in line with the strict notion of constitutionalism. These are important principles not only useful to correct the past mistakes, but also to avoid conflicts after the promulgation of the new democratic constitution. These are also the vital agendas for consensus-building.

It should be realised that inclusion of non-elected persons in the government is a gross violation of the principle of representative democracy. But the first republican government of Nepal included a number of non-elected individuals in the cabinet. These unelected individuals, according to the parliamentary system, should have been elected within a stipulated time by the law, but it has never been considered seriously or has simply been ignored. Such unethical practices must be rejected. Nepali citizens must refuse to pay tax if the unelected people are brought in the cabinet. After all, "No Taxation without Representation" is the one and only universal principle of democracy. Nepal's Constituent Assembly (CA) election, which was held in April 10, 2008, was the exercise of peoples' sovereignty and representative democracy. However, this very principle was violated by the CA, allowing unelected individuals in the coalition government formed after the election led by the Maoists. It was a collective illegal act of all political parties represented in the CA. This has to be corrected before the formation of a new government. If such a gross violation of the fundamental principle of democracy is not corrected by the CA itself, Nepal's civil society must voice concerns for correction of the constitutional errors. This will remind the people about the value of the principle of the "No Taxation without Representation." If this vital principle is not addressed at present, efforts to establish a representative form of democratic governance in the country will be in vain.

Primarily, it needs negotiation among various class of population for Nepal's national consensus building. Especially, in the backdrop of country's post-conflict situation, negotiation between elites, as well as between elites and underclass is needed. The Maoists gained legitimacy through the CA elections and emerged as a largest party of Nepal. The CPN-Maoist led collation government was constitutionally formed. Yet, despite the written agreement for an integration of the two armies the country failed to build a new Nepali army, keeping the Maoist fighters under cantonments. Neither side has come forward to reveal their past accountability. This situation remained, because there is a lack of interest for negotiation of the needs of people, which means that the needs of those low level soldiers of the both sides who come from the underclass and the overall need of Nepal. The problem here seems that the elite class of leadership all sides is sticking into their positions rather than to the real needs of underclass. Under this situation, an alliance has emerged between Nepal's President and its army chief. This alliance is being supported not only by the opposition Nepali Congress, but also the former coalition partners the CPN-UML and Madhesi Janadhikar Forum. One may question the need and timing of this alliance, whether it is aimed at pushing the Maoist army into the conflict once again, or an attempt to derailing the democratic development of the republic.

A new national consensus among various political parties can begin with a commitment to recognition of the supremacy of the CA (not to be confused with the so-called Legislative Parliament). The CA is not only the guardian of the constitution, but also the supreme body for exercising the people's sovereignty. It is more supreme than the Supreme Court, as well as the executive Prime Minister and/or constitutional President. The unanimously elected CA Chairperson has the right to summon the President and Nepal army chief, and proceed with further actions against them by and through discussion in the CA. And, the Chair also can summon the judges of the Supreme Court, who have consistently engaged in the encroachment upon the rights of the CA, entertaining the political cases such as declaration of the republic itself, and establish the fundamental constitutional principle of the representative government. Political issues must be dealt with politically, and the CA should not allow the Supreme Court to involve in.

Even if Nepal's Interim Constitution recognizes the President as the guardian of the constitution, it does not supersede the CA's authority (any legal argument otherwise is just an ill-informed lawyer’s way of working against constitutionalism). Constitutionally speaking, the Prime Minister’s resignation is a challenge to the legitimacy of the President. For a national consensus, the President and the army chief must also resign from their positions. Nepal's current system of the government is clearly based on the parliamentary system of government with an executive Prime Minister, and therefore the President’s actions not following the decision of the cabinet are clearly unconstitutional. In addition, he is responsible for backing the army chief by overriding the cabinet decision, which is also the violation of the people's sovereignty, and it is an impeachable offence that has been committed by the President. It would be in the interest of the country, if the first President of Nepal resigns, creating a good precedent for the future of the republic.

(The author can be reached at: katak.malla@gmail.com)

(Editor’s Note: Nepalis, wherever they live, as well as friends of Nepal around the globe are requested to contribute their views/opinions/recollections etc. on issues concerning present day Nepal to the Guest Column of Nepalnews. Length of the article should not be more than 1,000 words and may be edited for the purpose of clarity and space. Relevant photos as well as photo of the author may also be sent along with the article. Please send your write-ups to editors@mos.com.np)

Have your say ! (Registration required)