November 4, 2012


President Ram Baran Yadav is deeply worried about the state of the country, as his repeated consultations with political leaders demonstrate. But he has not shared publicly what he will do if the constitutional crisis engulfing the country is not resolved anytime soon. If he has to act, he must make a strong political and legal case for it to minimize the fallout.

The demise of the Constituent Assembly (CA) without a new constitution and declaration of another CA polls without making constitutional provisions for them are at the root of this crisis. The polls announced for November 22 will not take place. The advance budget will run out in mid-November bringing government services and projects to a grinding halt. Constitutional appointments have been halted affecting justice, corruption control and other vital oversight functions.

To be sure, politics is a game of power. But Nepal’s political parties have taken it to the ugliest extreme. They used the four years of CA to make and break government rather than writing the constitution. That unscrupulous pursuit of power continues unabated behind the façade of political consensus for elections to extricate the country from the woeful crisis.

Consensus demands compromise. But neither the Maoist-led ruling coalition nor opposition parties have shown readiness for flexibility. The Maoists do not want elections at all; and, if the vote must be held, they want to lead the election government. That is why PM Baburam Bhattarai has refused to heed the call to step down without a consensus candidate to replace him.

And opposition parties—Nepali Congress (NC) and CPN-UML—want elections under their leadership. They have demanded that Bhattarai must quit for consensus, conveniently overlooking the fact that any consensus will require Maoist agreement and the Maoists will not agree on any candidate other than their own. They do not have the legislative means—such as CA—or legal case to throw out the government. Neither have they enough public support to do it from the street.

So, NC and UML want President Yadav to dismiss the government. To look impartial, Yadav has been piling pressure on all leaders to break the impasse. To deflate the pressure and buy time, Prachanda, Bhattarai’s party boss, has made one proposal after another. In his latest bid, he has asked for CA’s revival, approval of the new constitution and an election government headed by a NC leader. Alternatively, he wants another election to CA under the Bhattarai government or an apolitical government.

NC and UML have rejected the proposal out of hand. Their concern about a Maoist-led election government is genuine—Maoist leaders have repeatedly said for them multiparty democracy is only a springboard for communism—but their numbers do not add up. Their combined strength in the dissolved CA was less than that of the Maoists and even after the recent split, Prachanda’s party would still have been the largest in CA.

As major parties squabble for the premiership, political pundits have been engaged in a fervent philosophical debate about how best to restore constitutional order. They are essentially divided between constitutionalist and political expedientist camps.

Constitutionalists stress that CA must be revived to amend IC to make room for fresh polls for another CA, because an ordinance cannot amend the constitution. They also believe, if parties agree, even parliamentary elections could be held by adopting the new constitution leaving the contentious issues for the next legislature. I have been a constitutionalist all along.

Political expedientists believe that there is no need to restore CA to amend IC because it can be done through an ordinance if major political parties agree. They argue that, since IC has been flouted so many times already, doing so one more time to open the avenue to go to people would be justified. They also opine that reviving CA would be against the Supreme Court verdict that forced CA’s dissolution.

Former chief justices told the prime minister last week that CA must be revived to amend IC for fresh elections but it cannot promulgate a new constitution against the Court’s verdict.

Essentially, constitutionalists are saying that both means and end have to be right in democracy, whereas the political expedientists are arguing that end justifies means. Ironically, several parties and pundits that otherwise claim to be democratic—like NC and UML, and their supporters—have become political expedientists rejecting the rule of law for a shortcut.

That brings me to the President. From his recent remarks, he seems to favor the expedient approach. But he knows the crisis cannot be resolved without consensus. So he has invited political leaders to Sheetal Niwas and exhorted them several times to find agreement. Every time, the leaders have pledged to build consensus within next few days, but never delivered. Rather they are putting pressure on him—NC and UML to dismiss the Maoist-led government and the Maoists to refrain from such activism.

The President looks like Odysseus forced to choose between Scylla and Charybdis. His dilemma is as much constitutional as personal. If he fails to defend the constitution and restore constitutionality, it would be his glaring failure as custodian of the constitution and as a democrat. However, if he takes action against the government, he will enrage the Maoists and make it nearly impossible to build political consensus to resolve the crisis. His performance and prestige are on the line either way.

Naturally, he might want to leave an illustrious legacy and even cherish to be reelected. Therefore, he will err on the side of caution to remain above controversy. Yet, he might have to be a reluctant warrior if the current political impasse continues to fester. If he must act, he should build a strong political and legal case to do so.

Here is how the President can make such a case to minimize controversy. First, he should tell the prime minister that it is his personal responsibility—as the country’s chief executive—to forge consensus to resolve the political and constitutional crisis. He should stop defusing that responsibility among leaders of two dozen parties. Second, the president should orally give a timeframe for the prime minister to find a solution.

Third, if the prime minister refuses to, or cannot, tackle the situation within the given timeframe, the President should give the prime minister in black and white a timeline to either find consensus or clear the decks for one who is prepared to do so. If the prime minister fails to deliver, the President will have every justification to act against the government.

Although it is fine for the President to cast a wide net of contacts, his pattern of engagement regarding the crisis looks fundamentally flawed. Under IC, the President must act through the prime minister, his main point of contact with the government and people. It applies to the resolution of the current crisis as well. But it seems he is letting the prime minister off the hook by engaging more with other leaders. Power comes with responsibility, as Winston Churchill has said.

The president, therefore, must make the prime minister primarily responsible for resolving the crisis and hold him to account. He must also stick to constitutional, not politically expedient, approach. It will make his own road ahead much smoother.

Published on 2012-11-04 01:10:48

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