The way out

To justify the CA dissolution, the ruling coalition announced the date of November 22 for the election of a new CA. But this was just a ploy. Technically, it was a wrong time to hold election because of festivities around that time throughout the country. Besides, holding election in January is not possible at a time when most of the mountain passes are covered with snow. More importantly, there is no provision for another CA election in the interim constitution. The Election Commission has declared that it cannot hold election without amending various constitutional provisions and prevailing acts. The ruling parties knew that holding a second CA election is impossible without constitution amendment through a functioning parliament. The objective was to continue in power indefinitely. Whether the election would be held with or without political consensus, their aim was to misuse state machinery.

PRESIDENTIAL ROLE

The Presidential position is one of constitutional figurehead without executive role. Therefore, the Maoists thought that there is very little he could do to prevent them from achieving their objective. But the President’s strength is his moral authority which he derives from the strength of public opinion and constitutional provisions. Article 35 (A) says it is the duty of the President to preserve the constitution, and as such he has to function as a constitutional guardian at the time of its derailment. As an operational guiding principle for the cabinet, Article 43 says the government will function in the spirit of the Jana Andolan II and the culture of political consensus and cooperation, which the government failed to comply with.

Against this background the President was quick to draw the PM’s attention to Article 38 of the constitution which says—one of the conditions for the PM’s chair falling vacant is—”if he is no longer the member of parliament.” Since, the President has used his authority for course correction against cabinet decisions. He stood firmly against the PM’s wish to promulgate a full-fledged budget without political consensus. He also returned the election related ordinance brought without political consensus and constitution amendment.

BREWING CONFRONTATION?

Obviously, the country is embroiled in an unprecedented political turmoil. The promised constitution was not delivered. The much hyped consensus politics, a hallmark of peace process, is tottering. The prospect of political confrontation is increasing with the ruling parties forming a “Federal Democratic Republican Alliance” to fight NC, CPN-UML and other liberal forces. They forgot that it was an NC-led government which had declared the country a “federal democratic republic.” On the other hand, the opposition parties are demanding the PM’s immediate ouster and threatening street agitation. The Maoists say they will give up power only if there is full agreement on all outstanding constitutional issues to their satisfaction. The prospect is bleak.

Meanwhile, impunity and anarchy prevail with two sets of standards, one applied for the Maoists and other for others. Maoist leaders convicted by courts roam freely while others implicated in criminal cases are elevated in party hierarchy and government. Billions were siphoned off by the Maoist leaders from government treasury in the name of non-existent combatants. The long pending issue of integration and rehabilitation of Maoist combatants is not yet complete.

WAY FORWARD

But the situation is not completely out of hand. One interesting aspect of Nepali politics is that even in a confrontational situation, party leaders remain in talking terms and maintain good personal relations. They realize that there is no alternative to dialogue and consensus, if the gains of the peace process and the second People’s Movement are to be protected and institutionalized. Just a few days back, the Special Committee was convened and opposition parties showed flexibility in resolving outstanding issues which had delayed integration. The inter-party political dialogue has restarted. Although it is still too early to expect particular outcomes, attempts are being made to find solutions to contentious issues and an acceptable roadmap relating to constitution, national government and fresh election.

Agreement on the basic content of the constitution including a broad framework of federalization, and form of government may still be possible. However, attempts to define details and specifics which could provoke emotions and lead to rigid party positions could only end in failure. Such issues should better be left to future legislature or provincial assemblies. Time could be healer for emotive issues to come to realistic positions. Linked with the political agreement is the issue of process roadmap for constitutional legitimacy. In the absence of a legislative body and breakdown of the constitutional process, there is no alternative to political action by President invoking Article 145 to remove difficulties in the way of executing the constitution, for which political consensus is necessary. This will define the process roadmap to activate the constitutional provisions.

RESTORATION OR FRESH ELECTION?

The current debate is between the restoration of the dissolved CA or fresh election. In view of the Supreme Court decision, the bloated nature of this body and its failure to produce constitution even during the extended period, the general opinion is against restoration. However, if firm political agreement can be reached on the contents of the constitution beforehand, restoration of the CA for a few weeks for its passage has not been ruled out, although this prospect is limited. After the promulgation of the constitution, the country can go to fresh poll for parliament under the new constitution by April/May 2013.

The other option is to go for fresh poll straightway.

For this two questions must be answered beforehand. The first is election for what: parliament or another CA? Opinions differ, but there is general agreement that whatever the nomenclature, it will have both functions—constitution drafting (maximum one year) and legislature for the next five year under the new constitution. The other question relates to the size and composition of the body, because the previous body was too big with 601 members, a large majority of them nominated under PR system. There is no justification for this bloated size.

The President should initiate dialogue with parties and ask them to recommend PM candidate, which will trigger intensive inter-party dialogue on all issues.

CONSTITUTIONAL RESPONSIBILITY

The present government remains the principle obstacle to the political process. A government which has lost its political and ethical legitimacy has been in office for more than three months already. The crisis of confidence generated by the unexpected and unilateral May 27 midnight decision is deep among the opposition parties which have refused to even to hold formal dialogue with the Bhattarai government. To get out of this impasse, the PM himself should have advised the President to ask political parties to recommend a consensus candidate to succeed him.

Since this has not happened, the President should initiate dialogue with parties and formally ask them to recommend the candidate. This will trigger more intensive inter-party dialogue for government formation and other issues. If consensus candidate does not emerge, the President should, based on his consultations with parties, appoint a Prime Minister who in his view can command greater political support.

The country cannot remain the prisoner of indecision for long. There is no clear constitutional outlet to the current impasse. In the absence of a functioning legislative body and the executive Prime Minister, the Presidency is the only legitimate executive institution with the constitutional responsibility to preserve the constitution, and bring the process back on track. As such political initiative and action from his part is necessary.

This is the concluding part of a two-part article. The first part was published yesterday.