Nepal is in a deep political and constitutional crisis now. There is no straightforward political or constitutional solution to the crisis, contrary to the suggestions of several politicians and pundits. However, there is an unconventional but constitutionally tenable way that could solve it and put the country back on constitutional track.
As head of government, Prime Minister Baburam Bhattarai is morally and institutionally the guiltiest actor for foisting and prolonging the current crisis. He let the Constitutional Assembly (CA) die without delivering a new constitution and announced elections for another CA without amending the Interim Constitution (IC), which has no provision for such polls. Opposition parties repudiated the announcement as unconstitutional. The Election Commission poured cold water on the government’s design citing that it cannot organize the vote without constitutional and legal provisions for it.
One who makes a mistake should set it right or face the consequence. Bhattarai, therefore, must take credible initiative to resolve the crisis or quit. Other politicians have been waiting for Bhattarai’s overtures. It is ludicrous for Bhattarai to say he would leave when his replacement is found—which he will make sure would not happen—to clean up his mess. Only the Nepali Congress party may believe—as it did in the 5-point agreement—this cleaver tactic of deception of someone who has earned the sobriquet of the “most educated and most incompetent prime minister presiding over the most corrupt government,” as one commentator put it.
Frustrated by the continued stalemate, President Ram Baran Yadav recently exhorted party leaders at Sheetal Niwas to find a way out with a sense of urgency. As usual, the party leaders blamed each other for the crisis and repeated their half-baked pledges to find political agreement. Incredibly, none of the leaders presented a road map to take the country from the current crisis to the realm of stability and development.
Most politicians and pundits, including the prime minister, prefer a political solution by building consensus for fresh elections. Others have sought to restore the dissolved CA to carry out the remaining tasks of the new constitution. Unfortunately, none of these options is constitutionally tenable.
The political solution—without amending the IC—is untenable. It reminds me of a story in which two hungry men have to spend a night together in a deserted barn. One was carrying paddy and the other rice. The paddy carrier wanted to exchange rice with his paddy so he could munch it to quell hunger. He told the innocent rice carrier that eating rice was difficult because it needed water, fire and a pot to cook. But his paddy was easy; he could simply beat it and eat. A political solution is like beating the paddy and eating it, a way to deceive people.
What do you do once all parties agree to go for a CA or parliamentary vote? Sure, politics is the art of the possible, as German politician Otto Von Bismark, said in 1867. But a country aspiring to evolve as a democratic society must conform to the rule of law and constitutionality. Those who cite the experience of 1990/91 as a transitional guide for now are wrong.
The political crisis of 2012 is constitutionally different. In 1990/91, people had discarded the existing constitution and system of government, and transitional arrangements were made to fill the gap. In 2012, no revolution has rejected the IC to create the gap. The current vacuum is a product of deliberate deception by the government to remain in power as long as possible. If the IC is ditched to create a void, the president, government and courts will lose their legitimacy.
If the Maoist-Madheshi coalition government were serious about holding the polls, it would have amended the IC before the CA was dissolved, to make room for them. But it did not. If elections for a new CA or parliament are held in this situation, the Supreme Court will nullify them as held in violation of the IC, as the Egyptian and Kuwaiti constitutional courts did in their countries early this year. A political agreement cannot supersede the constitution, when it is alive, and an ordinance cannot amend the law of the land.
The other option—restoring the dissolved CA to complete the work on the new constitution—is fraught with serious problems as well. The IC has no provision for such reinstatement. If politicians move this option, the president will not act on it; and if he does, the Supreme Court, which forced the dissolution of the CA in May this year, will hold the president and speaker for the contempt of court and determine the restoration as unconstitutional. So this option is effectively off the table.
When there is no straightforward political and constitutional solution, the theory of second best can come to rescue. First propounded by two economists, Richard Lipsey and Kelvin Lancaster, the theory has made its way into the legal realm. Under this theory, when ideal solution to a legal problem is lacking, one must look at all policy options, examine their feasibility, and choose the one that resolves the problem as legally as possible.
This means Nepal must go for a third way—restoration of the CA for a few days—say 10 days— to approve a new constitution or amend the IC, followed by an automatic dissolution.
If Bhattarai fails to act, it becomes the president’s obligation to remove a prime minister who is guilty of creating and prolonging the current stalemate.
Restoration of dissolved legislatures to make constitutional arrangements is not unprecedented. For instance, in the UK, the long parliament summoned by King Charles I in 1640 and dissolved by Oliver Cromwell in 1653 was restored in 1660 to pass an act of dissolution to dissolve itself. Kuwait restored its parliament in 1992. In Nepal, King Gyanendra reinstated in 2006 the dissolved parliament that promulgated the IC.
Article 36A (3) of the IC has made the president the constitution’s protector. The only way he can fulfill this duty is by reinstating the CA under Article 158 of the IC that confers on him the powers to remove difficulties, at the prime minister’s recommendation and the Supreme Court’s advice. The Court will not block this imperfect but the only way back to constitutional order. So the political class will do well to heed Sher Bahadur Deuba’s view to restore the CA for a limited time.
But the president should restore the CA only after political leaders meet one of the two conditions. Preferably, they should agree on the outstanding issues of the new constitution so it could be promulgated and parliamentary elections could be announced, as envisaged in the IC. Failing that, they must agree to amend the IC based on whether they choose to go for elections to parliament that could also complete the remaining tasks of the new constitution or to a new CA to do it. This will ensure that the CA can finish its tasks in 10 days under abridged procedures.
The president should not be active without giving the prime minister a certain period—say, a month—to resolve the crisis or resign. If the prime minister fails to act within that time, it becomes the president’s obligation under the IC to act sua sponte to remove a prime minister, who is the guiltiest for creating and prolonging the current crisis and is milking it for personal and parochial advantage, and put the country back on constitutional track.