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A government which not only governs but also occupies the place traditionally given to a loyal opposition has become a fact of life in Nepal in the third year of the long-cherished "loktantra".
One faction of the ruling coalition, the CPN (UML), has joined the backbenchers. Another faction, the Madhesi Janaadhikar Forum, is not quite sure whether to hold onto the caretaker government or join the new coalition that is about to emerge. The second faction is crucial for everybody as the kingmaker, because although it cannot establish itself as a party to lead the government, no one can form an alternative government without its active support.
In each case, nobody has any principle to establish or a theory to contest. This is not simple patronage, corruption and nepotism. How this strange process works in an allegedly democratic Nepal is no secret.
The government of Prime Minister Pushpa Kamal Dahal, which has assumed the character of a caretaker government, does not want to confine itself to the limit which applies while negotiations to form a new coalition is taking place.
A government with this status is not supposed to carry on like this and take major executive decisions for which it needs a continued majority status.
Again, the caretaker government is aware that taking action against the president, who has publicly shown his differences with the government on the issue of the dismissal of the chief of army staff, is simply beyond its capacity at this stage. A government which has reduced itself to a minority status cannot claim to have the strength to move an impeachment motion against the president, which in any case requires a two-thirds majority to pass. It will be a travesty of the rule of law if the speaker of the House concedes to it.
This is precisely the reason why the prime minister and his party are talking about bringing a parliamentary resolution in the House against the president before it is allowed to vote for an alternative government. Such a resolution is very "unparliamentary" in terms of the Interim Constitution, as it stands now, and also the parliamentary traditions that Nepal has been exposed to so far. Resolutions are to be expressed by the majority in the House, not by a section of it, and it is not meant to be a censure motion against anybody (including the president). He is definitely immune from this process.
The system definitely lacks moral contents at every turn. It is not amusing when lawmakers of the Madheshi Janaadhikar Forum engage in a fistfight over which party to support in the new coalition. It hurts when people who have faith in the recognised procedures of government formation find a mainstream party like the CPN (UML) running after legislators to collect their signatures in favour of its senior leader Madhav Kumar Nepal.
The finance minister in the caretaker government Baburam Bhattarai has accused political parties of engaging in nasty horse trading to accumulate a majority for a new coalition. He has even claimed that parties paid hefty amounts of money to lawmakers to gain their support to form a government. The allegation may not be true, but one has to seriously ponder why all these things are happening at all.
According to parliamentary tradition, the basic rule is that following a general election, the head of state will always call upon the leader of the majority party in the House of Representatives to form a government. The electoral system usually provides a clear winner, but this is not always the case. When there is no clear winner able to form a government, the head of state has the obligation to see if there could be a coalition government capable of commanding a majority in order to sustain itself.
There are obviously claims from all interested parties. It is the responsibility of the head of state to look objectively whose claim appears to be realistic. It is his duty, therefore, to ask someone to form a coalition. Where there is no possibility of a coalition government either, the head of state can even ask a party which can provide a viable minority government. This means he should ask the leader of the party most likely to be able to sustain a government to become prime minister.
The survival of any government, whether a minority government or a government by way of a coalition, will depend upon its ability to maintain a majority among the legislators in the House of Representatives. In any case, a government is not formed by a vote of the House, not at all. At this level, it is merely a commission from the head of state.
The House gets its first chance to express its confidence in the new government when it votes on the speech by the head of state in parliament. This is the rule in most parliamentary democracies. This is the rule that the framers of the constitution and their mentors parted with for many unseen reasons when they drafted the Interim Constitution. In this environment, where there are no stakeholders in the rule of law, it is doubtful how the Constituent Assembly can draft a good constitution.
There would have been no constitutional crisis had the authors of the Sixth Amendment to the Interim Constitution resisted pressure to maintain silence on this matter in order to allow extra-constitutional forces to have their way.