Bipin Adhikari
Constitutional Law, Governance & Public Policy Issues
Home   About   Contact Us  Archives



Nepal Consulting Lawyers Inc

B. P. Koirala Archives & Records

D-Day minus four

Bipin Adhikari
The Kathmandu Post, May 24, 2010
Source: The Kathmandu Post

May 28 is quite close. The long awaited day when the new constitution of Nepal was expected to be promulgated is about to pass without any constitution being adopted and promulgated. This is not a serious concern at the moment though. The serious concern is that even the Constituent Assembly is going to expire on May 28 — leaving its unfinished business in the sands of history. Lack of consensus between the Unified Communist Party of Nepal (Maoist) and the governing coalition is preventing the CA from even amending the constitution — extending its timeframe for another mutually agreed duration.

While negotiations are going on between contending parties, the fear among the people as to the situation that will unfold after May 28 is not baseless. After this day, the CA and all decision making structures within the assembly will cease to exist. The country's legislature, which has been conceived as the tail, cannot continue to exist in the absence of the head — the CA. A scenario where the legislature has already disappeared will create several constitutional hiccups including in the system of validating the national budget, passing the Appropriation Act and raising taxes and approving expenditures.

The constitutional functionaries will gradually become defunct in the absence of appointing and monitoring bodies including the Constitutional Council. The government of the day, in the absence of a functioning legislature, will automatically become a "caretaker' government"— not supposed to take major decisions affecting public policies. The president, who is supposed to continue till a new constitution is promulgated, will be under pressure of the constitutional vacuum that comes to exist in the country. Although the constitution will continue to operate, its status will change to that of a lame duck.

There are some leaders who have spoken of general elections for a new mandate from the people after May 28. Unfortunately, the Interim Constitution does not provide for any such election. It never conceived of the failure of the CA to deliver a new constitution and end the transitional arrangement with a full fledged constitutional system. It simply does not authorize any general elections, even as an exceptional or emergency arrangement. Should it be pursued any further, the Constitution must be amended before May 28 created enabling provisions. This is not going to happen so easily. Had it been easier to strike a compromise between the ruling coalition and the Maoist opposition, thereby creating a two-thirds majority in the house, such a problem would never have come up. Apparently, the transition has come to a dead end.

In such a situation, as has happened all through these years ever since 2002, the politicians, either as a consensual force or as a partisan group, will prevail over the fate of the nation and the concept of the rule of law in whatever amount it still survives. Again, Article 158 (the power to remove difficulties) will be invoked. If not, some lawyers will not hesitate to advise the government to declare a state of emergency before the May 28 deadline, and then subsequently extend the tenure of the house for six months by a resolution. The media has already reported a couple of opinions that the "constitutional crisis" itself is enough grounds for imposition of a national emergency. Although this concept will be difficult to sell to a court of law, under Article 143 of the Constitution, there are apparently many politicians around who would be happy with that interpretation. Even if one of these two options is tried, the nerve of the knowledgeable politicians will go down when they find that both these options need the approval of the legislature no sooner than the euphoria it creates dies down.

Additionally, there is also loose talk in town that the CA will continue to exist even after May 28; but in that case, it will remain inoperative until a mutually agreed arrangement is in place, and the Interim Constitution is amended to give effect to them. People championing this way out should perhaps think why Article 64 states that the tenure of the CA is two years. This is complete nonsense.

What this situation means to the political scenario is then very clear. The logic of rebellion will be invoked once again. Several rounds of decisions will again be made, keeping the people off from the political process. Most of these decisions will affect the quality of governance and the national interest of this poor country. Since it has happened in the past in a way that has surprised most serious people, there is no reason to believe that it will not be repeated.

This unfortunate situation must not come. It will not help anybody including the Maoists. In a way, democracy and the rule of law is much more necessary to a rebellious force of the country than others playing safe politics. All civic arrangements are doomed to fail if democracy is not the destiny of political groups. From a human and historical vantage point, Maoist people's wars have been disasters everywhere. There is no reason why this disaster should continue to haunt the people of Nepal.

The ongoing warlike situation is due to the limited ability to fight a war. As far as the issue of integration of the combatants is concerned, this should be the responsibility of the state to be exercised in a way that furthers the prospects of peace and easy democratic landing for the Maoists. Of course, their claim to the leadership of the national government, if that comes through, should be promptly taken positively. There should, however, be a guarantee that democracy (in the civilized Western parameters) should not be tampered with when drafting the new constitution. The fight is over with this.

It is said that the Anglo-Zanzibar war of 1896 was fought for only 45 minutes. It holds the record of being the shortest war in the recorded history of the world, yet it achieved its objective. A change of strategy can help the Constitution be amended within the next four days leading to the least dangerous exit point for the remaining constitution writing job. The rest is decided in a democracy by the people, who hardly join the streets.

Bipin Adhikari

Copyright @ Bipin Adhikari,