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Repeating classic constitutional blunders

Bipin Adhikari
The Kathmandu Post
15 August, 2008

President Dr Ram Baran Yadav, who is the first elected head of the state, and bears principal responsibility to uphold the Constitution and abide by it, has asked the Constituent Assembly (acting as the legislature) to elect a new prime minister for the country according to the electoral process specified in Article 38 (2) of the Interim Constitution.

Following the failure of the political parties to forge a consensus government, which Article 38(1) of the Interim Constitution required as the first intended move, President Yadav was quick to advise the assembly to go for this second option. According to the second option, the candidate who is elected through a simple majority of the House is elected to the post -- and is entitled to forming a majoritarian government.

The move of the president has certainly surprised many critiques, who have different understanding of how a parliamentary system of government works, or should work in an ideal case. In fact, the Interim Constitution, which was issued after accomplishing a historical coup d'etate on the erstwhile 1990 Constitution, spared no clear guidelines on any matter of constitutional significance to the interim office bearers.

Even the five piecemeal amendments capitulated on this manipulative document -- just over a period of seventeen months -- left no clue to the President how he should exercise his discretion on the electoral positions of different parties in the newly elected Constituent Assembly, and find a prime minister for the country from within the House.

As a matter of rule, it is the responsibility of the President to find and appoint a prime minister for the country from the Constituent Assembly. He cannot delegate this responsibility to any A, B or C cutting unnecessary procedural corners. In a parliamentary system, this is probably the only executive act, which the President is supposed to do himself, on his own discretion and best judgment, and without any persuasion from the existing government.

For the great faith reposed on him, it is the newly appointed prime minister who in turn will have to prove his new credential before the House by securing a vote of confidence within a specified time. By not doing so, the President not only ignored the applicable constitutional conventions, but also abdicated his constitutional powers to those people who were not entitled to this.

In other words, if the President authentically believed that the Maoists had the fresh electoral mandate -- at least more than the rest of the minor parties in the House, Maoist chairman Puspa Kamal Dahal should have been quickly appointed as the prime minister (recognizing that he is a cut above others in this regard). It would have been logical for the President, in such a situation, to ask Dahal either to form a consensus government, or failing it, go for a government with simple majority -- in each case giving primacy to his first right to form the government.

Article 55A of the Constitution, which provides for the vote of confidence, would have served as an important institution to check the new prime minister, had he failed to muster necessary support. Apparently, the Maoists were not allowed to negotiate with the minor parties based on their newfound status in the House.

No doubt, both the President and the Maoist leaders were misguided about the applicable constitutional process. The President was advised to ask the CPN (Maoist) chairman -- the leader of the largest party in the Constituent Assembly -- to form a consensus within seven days to provide a new government to the people.

Later, this one week bizarre timeframe was extended to another three days. The CPN (Maoist) chairman was then advised to go around seeking support of the other minor parties -- without first asking the President to appoint him as the Prime Minister before he really started embarking on this process.

There was almost no difference of opinion among the major parties at that point that the CPN (Maoist) should be allowed to lead the new government by virtue of its status as the largest party in the Assembly. That was enough for the Maoist Chairman to make a claim, and the President to appoint him as the Prime Minister. Otherwise, how a party, which lacked simple majority in the House, could go on forming a consensus without getting an opportunity to deal with the rest of the minor parties from the position of power.

Unfortunately, the Maoists, too, instead of going for matured legal advice, were persuaded to question the power of the President to consult lawyers and leaders of the parliamentary parties, and appoint the most feasible person as the next prime minister, on his personal discretion.

Ordinarily, in a parliamentary system which follows the Westminster practices, it is the power of the President to summon the leader of the majority party to form the government as soon as the results of the elections to the House of Representatives are declared. If a particular party is in majority in the new House, the President has no discretion in the matter.

However, if no political party has clear majority in the House, the President can exercise his discretion in such a situation. In other words, it is his responsibility to invite that politician to form the government, who seems to be able to do it with a reasonable prospect of maintaining an administration in office.

It is for the President to think how he can identify that person who might command a majority in the House of all these minority parties that we see in the Constituent Assembly. The President should of course take all relevant considerations into account and be at great pains not only to be constitutionally correct, but make every effort to see that the correctness is likely to be generally recognized. It is not binding for the President to consult the outgoing prime minister, or the Attorney General appointed by him sometime back. In any sense, he must appoint the man or woman who can form a government which will have the confidence of the House within a specified period.

A general election might produce a result allowing of either a single-party minority government or a government formed from any of various combinations of parties under one or other of a number of party leaders. Hung assemblies, with no party enjoying an overall majority, will doubtless continue to recur if the system of proportional representation that has been adopted becomes the rule in the future as well.

This only means that the President has to recognize the first among the minor parties. The leader of the largest party could only be avoided as prime minister if it were clearly demonstrated to the President that a 'copper-bottomed coalition government' had been reached between other parties, and that their chosen leader was assured of majority support in the House. When there is no such situation, the President need not be constrained in appointing the leader of the largest party in the Assembly as the prime minister of the country.

This all shows that the proposed August 16 exercise in the Constituent Assembly to elect a new prime minister is going to produce another surprise. The politics of constitutional manipulation continues to be very serious, calculated to make sure that this country never gets back to the path of the rule of law. It appears that Nepal, even after the election of the President is not intended to escape the pattern, which started with the launching of the Mass Movement-II three years before.

(The writer is a constitutional expert)

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