President’s steps
The cabinet’s decision to remove CoAS and appoint a new one (as acting CoAS) was conveyed to the president by the government through a letter on May 3, 2009 without any request to confirm the decision before its execution in his capacity as head of state and the supreme commander of the army. However, the president’s reply was sent within hours to the prime minister in response to the information received from the government about the cabinet’s decision. The president advised the prime minister not to execute the cabinet’s decision until its process has been duly completed in compliance with the interim constitution and Nepal laws, and he was again asked to seek political consensus and resolve the issue in the spirit of the constitution and not derail the peace process, as was repeatedly advised in his earlier meetings. The prime minister had promised earlier to consult the president before taking a final decision but it was not done.
On May 3, 2009 itself, various political parties, including a delegation of 18 parties, met the president and handed over a memo requesting him to intervene as ‘protector and defender of the constitution’ and help correct cabinet’s unconstitutional decision made against the advice of even the coalition partners. The coalition parties also informed the president about their withdrawal of party support to the government.
In response to CoAS’ letter requesting president to instruct him in his capacity as supreme commander, the president referred to his last letter to the prime minister advising him to complete constitutional procedure. The president did not make any substantive decision on the issues in dispute but simply asked CoAS to continue with a view to maintain status quo until due process was followed.
The stories so reported reveal that despite some unclear position with the president, he was under pressure to take some active measures as an emergency to control the damage and keep the constitution in force. There may be agreements and disagreements in the president’s move; however, popular saying of a former Indian President R. Venkataraman is noteworthy here: ‘the office of the president is like an emergency light. It comes on automatic when there is a crisis and goes off automatically when the crisis passes.’
Legal position
On May 5, 2009, responding to a Public Interest Litigation (PIL) filed by some activists asking the court “to quash president’s action to retain CoAS” the Supreme Court (SC) issued a show cause notice to the president, council of ministers, Nepal Army (NA), and CoAS. Hence, the case is now under SC’s consideration which prevents all from making any irresponsible public comments on issues in dispute. The court did not issue interim order as was sought by the petitioner obliging the president to withdraw his letter sent to CoAS, because the SC may have to interpret the constitutional provisions related to the scope and limits of president’s power on the final hearings.
Under Article 144 of the interim constitution (4th. Amendment), power of appointment of CoAS is vested in the president who as head of state and supreme commander of the army acts on the advice of the council of ministers. According to the article, the ‘control, operation and management’ of NA has to be done through the president in accordance with law, and any reforms and ‘democratization of Nepal Army’ require political consensus and consultation of the parliament. The constitution says other matters pertaining to the NA shall be as provided for in the law.
The Army Act, 2063, which empowered the-then government to appoint, remove and mobilize army (on the advice of the National Defence Council headed by prime minister), has not been amended in compliance with the fourth and fifth amendment of the interim constitution yet. Many relevant provisions of Army Act 2063, not in conformity with interim constitution, are invalid after three months of its commencement (Article 164).
Political consensus
The executive power of Nepal, pursuant to the constitution and other laws, is vested in the council of ministers (art. 37.1). This provision strongly stipulates that Nepal has adopted parliamentary system with the principles of collective responsibilities of council of ministers, and which is something different to that of the full-fledged prime-ministerial system where the prime-minister has the sole command over the ministration along with the power of dissolving parliament.
There is another provision in the constitution which controls the position of absolute command of prime minister and seeks for the spirit of collectiveness in the ministration. Article 43 is this example. It clearly says that the conduct of business of the government of Nepal shall be carried out consistently with the aspirations of the united people’s movement, political consensus and culture of mutual cooperation. The common minimum program prepared through mutual agreement shall be the basis of the policies of the government of Nepal. There are a few other agreements reached among the political parties including the ruling ones which give impetus to the consensus in the conduct of business of the government.
Formation of new government
There are two crucial provisions in the constitution related to the formation of the government, i.e. council of ministers. The first provision relates to Article 38 (1) of the constitution and it reads, ‘The prime minister shall be selected by political consensus and the Council of Ministers shall be formed under the chairpersonship of the prime minister’. The second provision relates to Article 38 (2) and says that in case of failure to reach a consensus, the prime minister shall be elected by a simple majority of the legislature-parliament.
The parties have failed to meet the deadline given by the president to form a new government through the first constitutional option, i.e. consensus by Saturday. With Saturday deadline for political parties to reach a consensus for a new government over, the president on Sunday has written a letter to legislature-parliament to start procedures for electing the prime minister by a majority of the total number of the members present in the legislature-parliament. Any party or coalition will now have to show majority, i.e at least 301 seats in the House to form the government. However, the constraint to the enforcement of this provision is the continuation of Maoist obstruction in the legislature-parliament. In this context, seeking a constitutional and legal way out of the political deadlock resulting from Maoist obstruction in the parliament is an option for the parties which want a fresh government. The way out can be the speaker of the House who can exercise some exclusive powers to remove difficulties in such a situation.
Speaker’s role
Rule 7 of the Constituent Assembly (mode of operandi of legislature-parliament) states that in case of failure to reach a consensus in appointing the prime minister, the speaker shall have to fix a date and time for the election of prime-minister. Even after having fixed the date and time for election, if Maoists continue obstructions in the House, and consensus is not reached, the speaker may have two options: either to tolerate the disturbance created by members of the House or attempt to remove difficulties by appropriate steps. Removing difficulties are his exclusive powers under the Rules. Rule 158 of the Rules states that if any difficulty arises in connection with the implementation of the Rules, the speaker, subject to the constitution and the Rules, may issue necessary orders or directives to remove such difficulties and such orders or directives shall have force like the rules. Not only this but the speaker also has a final say to interpret the Rules and his decisions in this regard are final (rule 159). Thus, the ball to form a new government within a reasonable time is in the speaker’s court. The country can get a course so long as the speaker takes a right step in the right time.
(Writer is a constitutional lawyer.)
bhimarjun@gmail.com
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