This is how former President of India R Venkataraman described his presidential experience from 1987 to 1992 in his famous book My Presidential Years. As the potential constitutional crisis seems imminent in Nepal due to the likely failure of political parties to agree on contentious constitutional issues by the 27 May deadline, it is time to see how the “emergency light” of the President Dr Rambaran Yadav works in Nepal, where the institution of presidency is in its infancy. This will mostly depend on how wisely and consultatively Dr Yadav masters the art of political crisis management, given exigencies.
Consistent with its previous position, the Supreme Court of Nepal on Thursday ruled out the possibility of extending the mandate of the Constituent Assembly any further. Though there is room for academic discussion and criticism of the Supreme Court’s position, it was natural for the apex court to remain consistent with its position and avoid politically calculated decision making.
Despite the need for political leaders to rise above party politics and self-centrism, one can hardly see the expected level of sincerity in our top leaders toward striking a consensus on outstanding constitutional issues, including federalism. They still seem more concerned about protecting their turfs and engaging in power tussles.
Needless to say, the so called top leaders (Sirsa Netas) are primarily responsible for the current complications and mess. They completely monopolized the decision making in the constitution drafting process. They kept the Constituent Assembly ineffective for more than two years. The Constituent Assembly has now been turned into a ceremonial mechanism that ratifies without questioning what a powerful few decide. This signifies a complete demise of participatory constitutionalism, which was raison d’etre of the Constituent Assembly of Nepal.
Nevertheless, there is no alternative to a meaningful discourse and consensus between the top leaders at this crucial moment. They should convince themselves and their cadres that they are going to create a living document which can be developed, nurtured and strengthened over time through amendments, interpretation and practice.
If political discourse moves toward a consensus, meaning political parties agree on key contentious issues by May 27 and there are a few days or weeks for the CA to reflect on the consensus before finally adopting the new constitution, an outlet must be explored within the Interim Constitution in order to allow the CA to accomplish its time-bound plan of action. The Supreme Court’s decision must not be viewed rigidly.
Having said that, the role of the President cannot be overlooked. The ‘removal of difficulties’ clause by the President under the Article 158 of the Interim Constitution 2007 says, “If any difficulty arises in connection with the implementation of this Constitution, the President may issue necessary orders to remove such difficulties, and such orders require endorsement by the Legislature-Parliament or the Constituent Assembly within a month.”This can be used as a last resort to remove difficulties in implementing a provision of the Interim Constitution (Article 70) that governs the process of adopting the new constitution. The exercise of this power is subject to a number of restrictions that include a recommendation from the council of ministers and a parliamentary endorsement of the “removal of difficulties order” within a month.
In addition to the enumerated requirements, a number of other criteria are also recommended in order to make the exercise of this power more democratic, unlike in the past when it was misused in Nepal. It is important that the Constituent Assembly adopts a resolution that clearly explains what has been done so far and what remains, making a realistic time-bound plan to accomplish the remaining process for adoption of the new constitution. The same resolution can call upon the government to make a recommendation to the President to issue a ‘removal of difficulties’ order to that effect.
It is important for such order to clearly answer the following questions: What difficulty has been created? Aren’t there other ways to remove such difficulties? Is the clause strictly required? The ‘difficulty removal plan’ should explicitly mention all details. The exercise of this power should be considered as a transitional safety net that aims to address the difficulties within the constitutional framework, which would otherwise prevent its smooth implementation because of the lack of other mechanisms. It is crucial to make sure that the exercise of this power by the President comes as an emergency light and goes off automatically when the crisis passes.
The writer is a constitutional and human rights lawyer
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