Nepal may not issue Constitution on set time: Constitutional Crisis in the offing
Rudra Sharma
November 22, 2009
November 20, 2009 marks the third anniversary of the Comprehensive Peace Accord (CPA) held between the government of Nepal and erstwhile Communist Party of Nepal (Maoist). They did it for good and replaced the then existing constitution by an interim Constitution putting a vision and mission of New Nepal. The interim Constitution of Nepal sets the deadline May 28, 2009 to issue a new Constitution of Nepal and Nepal´s 601 member Constituent Assembly (CA) is responsible to do the task on time. However, it seems that the CA will not be able to issue a new Constitution within this time if the present political scenario continues. Political leaders themselves admit this. One of the prominent ministers said couple of days ago that he would be dishonest if he did not say that they would be unable to issue the new constitution on time if the present political condition continues. The political deadlock persists and Constitution drafting has been second priority in comparison to opening the political deadlock that has made the government unable to pay the government employee their salary and money to run the daily administration. Nonetheless, the Maoist party has finally agreed to open the House ( parliament) only for three days for the purpose of passing the budget and the party has simultaneously declared its third phase of revolution. The third phase of revolution includes declaring autonomous federal units, general strikes so on and so forth. The Maoist leaders themselves have said the there is no possibility of making new constitution in such political scenario.
The background of the current political crisis goes deep down to the Constituent Assembly election held on April 10, 2008. In the CA election Nepal´s Communists Party of Maoists, which was waging a guerrilla war until 18 months ahead of the April 10, 2008 elections and whose nearly 20,000 Red Armies were still in Nepal´s cantonment being monitored by the United Nations, won the constituent assembly elections. The United States of America has not still removed Nepal´s Maoists from its list of terrorist organizations, although, former US President Jimmy Carter, who observed the elections, had called for the US government to waive the terrorist tag on the Maoists and recognize them as a legitimate political force since they had then come to power through the legitimate electoral process. Nepal´s immediate neighbor India and Nepal´s government itself had tagged the Maoists as terrorists until a few years ago, but they dropped this label as the peace process moved forward.
The constituent assembly abolished the 240-year-old monarchy of Nepal, although the king had already been powerless since the April 2006 uprising. The CA election gave rise to some regional parties called Medhasi Janaadhikar Forum (Forum for the Rights of the People of Terai) and Terai Madhesh Democratic Party (TMDP). People in these parties were involved in revolution for the rights and recognition of the people of Terai, the southern plain section of Nepal. The rise of a regional parties is a new dimension established by the CA election. Another matter of paramount importance is that Article 138 of the interim constitution has ensured that Nepal as a nation would be restructured as a federal state dividing itself into several federal units with devolution of powers still retained in Nepal´s capital Kathmandu. Another equally challenging job for the new government is to integrate the Maoist red-armies with the national army, their adjustment and reintegration.
The Maoist combatants are still in the UN monitored cantonments. However, a crucial controversy over the Maoist combatants was raised when a recorded video was released on May 5, 2009 disclosing Maoist President Prachanda speaking in Shaktikhor cantonment of Maoist combatants. In the video, Prachanda said that the exact number of Maoist combatants was far less than the number what they manipulated to register their combatants in the UN monitored cantonments. This also put questions over the United Nations which had scrutinized the qualification of the Maoist combatants.
After the CA election Maoist President Puspa Kamal Dahal a.ka. Prachanda became prime minister of Nepal and he resigned on May 4, 2009 after his nine months tenure disagreeing with the President Ram Baran Yadav over the controversy of dismissal of the Chief of Army Staff (CoAS) General Ruk Mandad Katuwal.
On April 19, 2009, Prachanda led government sent a letter to the COAS General Katuwal seeking clarification over certain issues. The letter also stated that the COAS Katuwal would be relieved from his post if the government would not be satisfied by the clarification rendered by General Katuwal. COAS Katuwal replied the letter of the government with clarification. However, the government was not satisfied with the clarifications of the COAS General Katuwal. So, the government on May 3, 2009 around 10 a.m. in the morning sent another letter to the COAS relieving him from the post. The government also gave letter to another General Kul Bahadur Khadkal appointing him on the post of COAS. However, the coalition partner another communist party of Nepal named Communist Party of Nepal, United Marxist and Leninist (CPN- UML) disagreed over the issue to relive the COAS Geneal Katuwal from his post. Disagreeing with the decision of the Maoist party, UML did not attend the meeting of the cabinet which decided to relieve General Katuwal from his post. Around 5 PM of the same May 3, 2009, the CPN-UML left the Dahal government disagreeing over the decision of the government to relieve colonel Katuwal from the post of COAS. As the coalition partner CPN-UML left the government disagreeing over the issue of relieving colonel Katuwal from the post of COAS, it seems that the decision to relieve Katuwal was a sole decision of the Maoist party not a decision of the government. As Priminister Dahal had fallen into minority over the issue, he had better resign before he made the decision. Here come a lot of constitutional question relating to the leader of the cabinet in a parliamentary democratic system, privileges and immunities of the president, communications between Prime minister and head of the state, privilege communications and confidence share between the head of the government and the head of the state. Some of the issues are already dealt at length by the Supreme Court of Nepal in the parliament dissolution cases.
Prime minister Puspakamal Dahal could have sacked the COAS at any time. But, he or any prime minister can not miss or undermine due process of law while doing so. First, the Dahal cabinet had to decide it when the government was commanding majority in the parliament. It is obvious that there was a row within the Dahal coalition whether to fire or not the COAS General Katuwal. The coalition partner UML informed in advance and did not participated in the cabinet meeting disagreeing with the decision of the Prime Minister or Maoist party. At this point erstwhile Prime Minister Dahal breached the contract with his coalition partner CPN-UML, breached a confidence of the coalition and did a fraud on the constitution. The moment UML disagreed over the issue and pulled-out from the government, Dahal lost confidence at the same moment. A prime minister who has lost confidence can not make any decision of this kind.
Second, Prime Minister Dahal could have sent the dismissal letter to General Katuwal but it should have gone through the President since he is the Supreme Commander of Nepal Army and he is the head of the state of Nepal. It is obvious that a ceremonial head of state does not have executive role, but this does not mean that his ceremonial role could be by-passed by a Prime Minister.
Third, a president whether it is ceremonial or not has certain immunities as a head of state. According to Article 36 (A) (3) of the Constitution, the ´main responsibility of the President shall be to protect and adhere to the Constitution.´ This section of the Constitution generates certain rights and duties of the president. There may be long and long interpretation of this constitutional clause, I do not want to delve on this.
The dramatic situation was like this. The dismissal letter sent to General Katual by Prime Minister Katuwal was to come into force from ´next day´. It meant that General Katuwal remained in office till the midnight of the day May 3, 2009 whereas Prime Minister Dahal had already, at the same time, given another letter to General Khadka making him COAS. The outcome was there were two COAS at the same time. One was appointed by the Prime Minister and was waiting for oath of office and anther was dismissed by the Prime Minister and was counting his hours till midnight. Meanwhile, the 18 political parties requested president Ram Baran Yadhav to solve the deadlock and potential bloodshed since there were two incumbent COAS at the same time. It is worth mentioning here that the president is the Supreme Commander of Nepal Army and has a duty to ´protect and adhere´ the constitution.
On the request of the 18 political parties and after consultation with many quarters, president ordered Katuwal to continue his office as COAS. The president did it on the same day before midnight of May 3, 2009. Disagreeing with the move of the President Yadhav, Prime Minister Dahal on May 4, 2009 resigned from his office. Following the resignation of Prime Minister Dahal, leader of CPN-UML Mr. Madhav Kumar Nepal on May 24 became Prime Minister of Nepal.
Soon after Prime Minister Dahal steeped down from his office, the Maoist party has been shouting the slogan of ´people´s supremacy´ for the sake of correcting the President Yadav´s move to reinstate Katuwal as COAS. Mr. Katuwal has already been retired from his office. But, the Maoist party has been continuing the slogan of ´People´s supremacy´ for the sake of correcting President Yadav´s move. The Maoist party has already completed one phase of its struggle and is now in a mood of declaring another phase of struggles in order to meet their demands. Consensus have been difficult for most of the issues. Over four committees of the CA have still not submitted their report. Differences between the political parties over very many are ever increasing in the CA meetings. For example, there are differences over the judiciary, national flag so on and so many issues.
In such a political scenario, Nepal´s political parties have to make and issue the new constitution within a period of less than seven months. Article 70 of the Interim Constitution states that the preamble as well as each and every articles of the new constitution has to be passed by consensus. Article 70 (2) of the interim Constitution states … ´ at least two-third of the total members of the Constituent Assembly must be present and must pass the motion unanimously.´ If such unanimity is not reached, the preamble and Articles of the constitution can be passed by two-third majority of the meeting of CA where at least two-third majority of the CA members are present. Given the present political situation, I can not see any possibilities of such consensus among the political parties. However, it is Nepal. Lord Pashupatinath may do anything at the last hour. If you want to understand Nepalese politics, there is one formula, " Expect always something unexpected." Let´s hope.
The background of the current political crisis goes deep down to the Constituent Assembly election held on April 10, 2008. In the CA election Nepal´s Communists Party of Maoists, which was waging a guerrilla war until 18 months ahead of the April 10, 2008 elections and whose nearly 20,000 Red Armies were still in Nepal´s cantonment being monitored by the United Nations, won the constituent assembly elections. The United States of America has not still removed Nepal´s Maoists from its list of terrorist organizations, although, former US President Jimmy Carter, who observed the elections, had called for the US government to waive the terrorist tag on the Maoists and recognize them as a legitimate political force since they had then come to power through the legitimate electoral process. Nepal´s immediate neighbor India and Nepal´s government itself had tagged the Maoists as terrorists until a few years ago, but they dropped this label as the peace process moved forward.
The constituent assembly abolished the 240-year-old monarchy of Nepal, although the king had already been powerless since the April 2006 uprising. The CA election gave rise to some regional parties called Medhasi Janaadhikar Forum (Forum for the Rights of the People of Terai) and Terai Madhesh Democratic Party (TMDP). People in these parties were involved in revolution for the rights and recognition of the people of Terai, the southern plain section of Nepal. The rise of a regional parties is a new dimension established by the CA election. Another matter of paramount importance is that Article 138 of the interim constitution has ensured that Nepal as a nation would be restructured as a federal state dividing itself into several federal units with devolution of powers still retained in Nepal´s capital Kathmandu. Another equally challenging job for the new government is to integrate the Maoist red-armies with the national army, their adjustment and reintegration.
The Maoist combatants are still in the UN monitored cantonments. However, a crucial controversy over the Maoist combatants was raised when a recorded video was released on May 5, 2009 disclosing Maoist President Prachanda speaking in Shaktikhor cantonment of Maoist combatants. In the video, Prachanda said that the exact number of Maoist combatants was far less than the number what they manipulated to register their combatants in the UN monitored cantonments. This also put questions over the United Nations which had scrutinized the qualification of the Maoist combatants.
After the CA election Maoist President Puspa Kamal Dahal a.ka. Prachanda became prime minister of Nepal and he resigned on May 4, 2009 after his nine months tenure disagreeing with the President Ram Baran Yadav over the controversy of dismissal of the Chief of Army Staff (CoAS) General Ruk Mandad Katuwal.
On April 19, 2009, Prachanda led government sent a letter to the COAS General Katuwal seeking clarification over certain issues. The letter also stated that the COAS Katuwal would be relieved from his post if the government would not be satisfied by the clarification rendered by General Katuwal. COAS Katuwal replied the letter of the government with clarification. However, the government was not satisfied with the clarifications of the COAS General Katuwal. So, the government on May 3, 2009 around 10 a.m. in the morning sent another letter to the COAS relieving him from the post. The government also gave letter to another General Kul Bahadur Khadkal appointing him on the post of COAS. However, the coalition partner another communist party of Nepal named Communist Party of Nepal, United Marxist and Leninist (CPN- UML) disagreed over the issue to relive the COAS Geneal Katuwal from his post. Disagreeing with the decision of the Maoist party, UML did not attend the meeting of the cabinet which decided to relieve General Katuwal from his post. Around 5 PM of the same May 3, 2009, the CPN-UML left the Dahal government disagreeing over the decision of the government to relieve colonel Katuwal from the post of COAS. As the coalition partner CPN-UML left the government disagreeing over the issue of relieving colonel Katuwal from the post of COAS, it seems that the decision to relieve Katuwal was a sole decision of the Maoist party not a decision of the government. As Priminister Dahal had fallen into minority over the issue, he had better resign before he made the decision. Here come a lot of constitutional question relating to the leader of the cabinet in a parliamentary democratic system, privileges and immunities of the president, communications between Prime minister and head of the state, privilege communications and confidence share between the head of the government and the head of the state. Some of the issues are already dealt at length by the Supreme Court of Nepal in the parliament dissolution cases.
Prime minister Puspakamal Dahal could have sacked the COAS at any time. But, he or any prime minister can not miss or undermine due process of law while doing so. First, the Dahal cabinet had to decide it when the government was commanding majority in the parliament. It is obvious that there was a row within the Dahal coalition whether to fire or not the COAS General Katuwal. The coalition partner UML informed in advance and did not participated in the cabinet meeting disagreeing with the decision of the Prime Minister or Maoist party. At this point erstwhile Prime Minister Dahal breached the contract with his coalition partner CPN-UML, breached a confidence of the coalition and did a fraud on the constitution. The moment UML disagreed over the issue and pulled-out from the government, Dahal lost confidence at the same moment. A prime minister who has lost confidence can not make any decision of this kind.
Second, Prime Minister Dahal could have sent the dismissal letter to General Katuwal but it should have gone through the President since he is the Supreme Commander of Nepal Army and he is the head of the state of Nepal. It is obvious that a ceremonial head of state does not have executive role, but this does not mean that his ceremonial role could be by-passed by a Prime Minister.
Third, a president whether it is ceremonial or not has certain immunities as a head of state. According to Article 36 (A) (3) of the Constitution, the ´main responsibility of the President shall be to protect and adhere to the Constitution.´ This section of the Constitution generates certain rights and duties of the president. There may be long and long interpretation of this constitutional clause, I do not want to delve on this.
The dramatic situation was like this. The dismissal letter sent to General Katual by Prime Minister Katuwal was to come into force from ´next day´. It meant that General Katuwal remained in office till the midnight of the day May 3, 2009 whereas Prime Minister Dahal had already, at the same time, given another letter to General Khadka making him COAS. The outcome was there were two COAS at the same time. One was appointed by the Prime Minister and was waiting for oath of office and anther was dismissed by the Prime Minister and was counting his hours till midnight. Meanwhile, the 18 political parties requested president Ram Baran Yadhav to solve the deadlock and potential bloodshed since there were two incumbent COAS at the same time. It is worth mentioning here that the president is the Supreme Commander of Nepal Army and has a duty to ´protect and adhere´ the constitution.
On the request of the 18 political parties and after consultation with many quarters, president ordered Katuwal to continue his office as COAS. The president did it on the same day before midnight of May 3, 2009. Disagreeing with the move of the President Yadhav, Prime Minister Dahal on May 4, 2009 resigned from his office. Following the resignation of Prime Minister Dahal, leader of CPN-UML Mr. Madhav Kumar Nepal on May 24 became Prime Minister of Nepal.
Soon after Prime Minister Dahal steeped down from his office, the Maoist party has been shouting the slogan of ´people´s supremacy´ for the sake of correcting the President Yadav´s move to reinstate Katuwal as COAS. Mr. Katuwal has already been retired from his office. But, the Maoist party has been continuing the slogan of ´People´s supremacy´ for the sake of correcting President Yadav´s move. The Maoist party has already completed one phase of its struggle and is now in a mood of declaring another phase of struggles in order to meet their demands. Consensus have been difficult for most of the issues. Over four committees of the CA have still not submitted their report. Differences between the political parties over very many are ever increasing in the CA meetings. For example, there are differences over the judiciary, national flag so on and so many issues.
In such a political scenario, Nepal´s political parties have to make and issue the new constitution within a period of less than seven months. Article 70 of the Interim Constitution states that the preamble as well as each and every articles of the new constitution has to be passed by consensus. Article 70 (2) of the interim Constitution states … ´ at least two-third of the total members of the Constituent Assembly must be present and must pass the motion unanimously.´ If such unanimity is not reached, the preamble and Articles of the constitution can be passed by two-third majority of the meeting of CA where at least two-third majority of the CA members are present. Given the present political situation, I can not see any possibilities of such consensus among the political parties. However, it is Nepal. Lord Pashupatinath may do anything at the last hour. If you want to understand Nepalese politics, there is one formula, " Expect always something unexpected." Let´s hope.
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