Constitutional Law, Governance & Public Policy Issues
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Nepal turned the palace of the besieged king Gyanendra into a museum after ending the Shah dynasty and declaring a republic last month.
As one can guess in any democratic society, the Communist Party of Nepal (Maoist) which has established itself as the largest party in the newly elected Constituent Assembly has claimed, without any interruption from the present leadership and its constituent parties, the position of the prime minister, and a subsequent right to form a new coalition government based on the fresh mandate. Maoist Chairman Puspa Kamal Dahal has reportedly told Prime Minister Girija Prasad Koirala that his party would not keep waiting for the political consensus to evolve if the Nepali Congress puts forth "unnecessary preconditions" to his party before the formation of the post-election government. He is convinced that he can get back to the people, and get things straight the other way round.
As clichéd as it sounds, these so-called 'unnecessary preconditions' have proverbially incomprehensive layers within and without. Some layers being expressed in explicit terms are the issues related with the People's Liberation Army, which is still waiting to be properly managed, and the Young Communist League, the group of former Maoist militias, which still has to learn how to behave with others, but need some sort of accommodation.
The Maoists and others including the Nepali Congress, which is the second- biggest party in the Assembly, also disagree over who should become president and when and how former rebel fighters are to be integrated into the Nepal Army or any other type of national force. The Nepali Congress backs Koirala to be the first president while the Maoists are pressing for any politically insignificant person (because they do not want to give that important position to any member of the recently sidelined major parties).
More important than that, however, is the issue of the Fifth Amendment to the Interim Constitution in order to re-draft certain crucial provisions, because now the (ruthless) Maoists are about to form the government, and certain checks and balances are inevitable in the Constitution to stop them from jumping off in directions that the self-styled 'Madari' (snake charmer) cannot possibly control. One such proposal is the two-third majority provision to appoint or call back a prime minister. A simple majority option is being argued by the three main parties for the same reason.
Much easier said than done. Behind these power sharing negotiation are the conditions under the table—which are being aired out to the Maoists through channels external to the constitutional process. Whether they agree to maintain the legacy of Prime Minister Koirala as an instrument of the darker edge of the ongoing revolution will decide whether they get the opportunity to form the government at all. The besieged monarch too had that choice. He decided to accept the solitary confinement in Nagarjun, than the heady, glamorous world that he had presumably been accustomed to.
This political development must link itself with the politics before the promulgation of the Interim Constitution of 2007. By now everybody knows, it was not necessary to part with the 1990 Constitution to bring about changes in the interest of the nation without distorting the basics of a written constitution. But the leaders who took the charge of the Jana Andolan-II did not have the tenderness that was necessary to understand the worth of their own traditions and history. They and their mentors harbored no intentions to grow organically based on Nepal's own experiment with constitutionalism.
The Interim Constitution was rather invented as a three-barrel gun—each barrel aimed at an important target of the contemporary Nepal: the end of the rule of law; abolition of the monarchy and elimination of the Communist Party of Nepal (Maoist). The Maoists definitely had a crucial role to hit on the first two targets, before becoming the third victim under the same process.
Apparently, the Interim Constitution was not the product of a clean hand coalition. At that time, the Maoists, as true Machiavellian felt that any moral judgment should be secondary to getting, increasing and maintaining power. Entrepreneurs are simply those who understand that there is little difference between obstacle and opportunity and are able to turn both to their advantage. A little wistful, indeed.
In order to achieve its objectives, the Interim Constitution left the most of all essential constitutional rules, conventions and practices which described, regulated or qualified the organization, powers and operations of the government and the relations between citizens and public authorities. What it provided for was the institutional description of the Constitution which included legislature, the government and the courts, the civil service and some constitutional bodies; but most of them were not explained by reference to rules and practices which define their powers and activities in terms of certain constitutional principles.
No need to mention here that the Maoists were also privy to these arrangements, and knew very well that these provisions were not only riddled with constitutional faults and flaws, but were also camouflaged to cover the inherent fault-lines in the said Jana-Andolan-II.
The Maoists accepted the Interim Constitution at that point of time because that served them very well. Similarly, if the government of G P Koirala chose not to tame the Maoists according to the terms of the peace agreements signed with them, it is because this was not in his interest as well. The rule of law has never been a priority to both of them.
It is good that many people know by now where the shoe pinches. But even now it must be explicitly recognized that the present administration is acting in a caretaker capacity until a new government is sworn in. While this country never had statutes pertaining to the powers of caretaker governments, various constitutional conventions have developed over the last few decades which apply to a government which has lost its face.
These conventions are comparable to those in many other democratic states, especially in relation to the requirement for incumbent administrations to maintain the policy status quo (i. e. that which existed prior to the government assuming a caretaker role) and exercise restraint when dealing with matters of political significance. There should be no controversy over the fact that the results of the elections must lead to the changes in the position of power and corresponding responsibilities.
There are crucial constitutional issues that are being discussed, but they are the issues which the government with fresh mandate should take up—definitely under its own leadership. There is a role for consensus for sure, given the fractured electoral mandate, but the Maoists have every right to lead the process as the largest party. Constitutionally, it is not possible to produce a government with a two-third majority to the detriment of the Maoists; and if they do not want any amendment on the Constitution, it is possible without their cooperation even if the ongoing negotiations prolongs for another couple of weeks.
At the face of this reality, a caretaker prime minister and his lost comrades are not supposed to decide what should be on the agenda of the state. This is the position of the constitutional law in black and white. If these preconditions are emphasized to an unnatural extent, the simple applicable logic is that the rules of the game are being changed under another design now because the players who have the entitlement to run the show happen to be Maoists.
To say the least, this move is not only a colorful exercise of power (an issue bound up with incompetency), but also a fraud in the Constitution. This assertion is very ill intentional because the establishment is trying once again to change the effect of the electoral outcome under an amended constitutional cover.
It is a good initiative to convert the Narayanhiti palace into a museum. But it is certainly in the interest of the majority of the people to sustain democracy and the rule of law as a functioning concept, rather than a worn out item to be kept in the museum along with the statue of the besieged monarch. This, with respect, is surely not an over reaction to the new Crown.