It has been over three months since Baburam Bhattarai was reduced to the status of a caretaker prime minister after forfeiting his parliamentary membership following the expiry of the Constituent Assembly on May 27. The current status of the government is not solely linked to the demise of the legislature-Parliament, but is also a fall-out of the ‘misplaced declaration’ made by the President Dr Ram Baran Yadav regarding Bhattarai’s caretaker status.
With this, the president has some explaining to do regarding the caretaker status of the government, and under which article of the Interim Constitution of Nepal, 2007 the present coalition government of the UCPN (Maoist) and some Madhes-centric parties has been functioning. The role, responsibilities, prestige and dignity of the position of the first president of the Republic of Nepal are inextricably linked to this question.
It is well known that bilateral, multilateral and even multinational talks aimed at finding a way-out of the current political logjam have not been conclusive. It is, however, strange that our political leaders, who are ideologically poles apart from each other, are working towards the very elusive ‘consensus’. In a democracy, it is nearly impossible to achieve consensus acceptable to all.
In reality, procedural management of a litany of differences alone is political consensus. Surprisingly, it seems efforts at forging consensus in Nepal are made not to make laws, but to break the rule of law and institutionalize the hegemony of those who have turned into political-feudals. This tendency has become pervasive ever since the term consensus was given constitutional validation by the Interim Constitution of Nepal, 2007. But the fact that the constitution had to be amended twice during the election of the president and the vice president makes it clear that the so-called consensus process did not even last for two months.
Fortunately, the country is yet to reach a situation where the entire state machinery has ceased to function or has become obsolete. We have a constitution, albeit an interim one, and that is accepted by all. We also have an independent judiciary established by this constitution and the unflinching faith of the people in it. The question, meanwhile, is not whether we should reinstate the CA or hold elections for a fresh one; it is about the supremacy of the constitution.
What is important is what the constitution states in letter and spirit. For this process to take effect, constitutional bodies which have been invested with authority by the Interim Constitution—first, the caretaker government, second, the president and third, the Supreme Court—should step in. Essentially, these three institutions alone have the responsibility of untangling the knot of political complexity the country is facing. These institutions cannot shift their constitutional responsibilities to other bodies. Ultimately, it is the Supreme Court that can suggest an acceptable solution to this.
The dissolution of the Constituent Assembly was in accordance with the ‘roadmap’ which the defunct Legislature-Parliament itself and the Supreme Court had charted out. Had the Supreme Court not ruled out further extension of the CA’s term, it is likely that our national politics would have been going around in never-ending circles, without yielding any results.
The constitution has established the president as the head of the state and the supreme commander of the national army. The president, who is the custodian of the constitution, is expected to play this role in times of crisis like now. The role and responsibility of the head of state automatically becomes expedient when the constitution of the country has failed to show a definite path ahead. It is for this reason that the president of India, which is merely a ceremonial post, is termed as the ‘emergency lamp’. In fact, the constructive role of the president does not refer to removing one government and replacing it by another; it refers to any effort aimed at finding a solution to the current crisis by keeping constitutional tradition at the centre.
Any efforts that look for alternatives from ‘outside’ the ambit of the Interim Constitution in the existing situation would be against the rule of law. If one is to believe that there is any semblance of law in the country, then the country cannot be run as per the ideological orientation, philosophy, whims and ambitions of a handful of leaders. It is only the people who are sovereign and have the power to change the dynamics of the polity.
The Supreme Court is the only constitutional and statutory body that can interpret the provisions of the constitution in case of any confusion. The president, the council of ministers, the Election Commission or any other body in Nepal does not have any authority to interpret the constitution whatsoever. Following the declaration of a fresh election for November 22, 2012 by the Bhattarai government, the Election Commission had publicly flouted the decision of the council of ministers and offered unsolicited recommendations to it, as well as, blatantly interpreted the constitution, over-stepping the constitutional jurisdiction of the apex court.
Therefore, the only legitimate way to address the current constitutional crisis is for the president to seek the advice from the Supreme Court for the purpose of Article 102 (4) and Article 107 (2) of the Interim Constitution. Beyond this, any step taken on the basis of so-called political consensus would be deemed unconstitutional. The country could be bailed out of the present predicament only if we follow the course determined by the Supreme Court, since the constitutional tradition and the precedents it has established and the new principles it propounds are in effect, the law. The president should be able to shoulder the responsibility of making all political parties accept the ruling of the Supreme Court as a precondition to this. The credibility of President Dr Ram Baran Yadav will be jeopardized if he further delays taking over this coordinating role in his capacity as the protector and defender of the constitution.
The author is President, MIREST Nepal, a media organization focused on, among other things, constitution making
sacharya.mirest@hotmail.com
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