National 4 (Spotlight Weekly)

A New Crisis

With the exercise of executive authority by King Gyanendra to dismiss Prime Minister Sher Bahadur Deuba, Nepal's 12-year-old constitutional practice takes a new turn

By KESHAB POUDEL

Nepalese have seen the failure of five constitutions in a span of five decades. The sixth is also on the verge of breakdown. Following the exercise of executive power by King Gyanendra to dismiss Prime Minister Sher Bahadur Deuba, the Constitution of Kingdom of Nepal 1990 has come under serious strain.

The constitution was engulfed in crisis following the agreement of seven political parties to search for alternatives to the scheduled elections, the sole way of providing continuity to the constitutional process. Once the House of Representatives was dissolved by the prime minister and fresh elections called, there was no alternative in the constitution. With the consensus of all parties, however, Deuba went ahead and sought the postponement of the elections by more than a year. This paved the way for the rupture in constitutional practice.

According to the present constitution, executive power can be exercised through the prime minister elected on the basis of popular vote. Political parties and many constitutional experts ignored this fact and suggested Article 127 as a panacea. In the process, they sought to justify unconstitutional steps. Since the dissolution of the House of Representatives, political parties have shown apathy toward the election process and have been more interested in charting unconstitutional ways. Had they accepted the electoral challenge thrown by Deuba, the current constitutional crisis could have been averted.

Despite their early backing to Deuba's election call, the CPN-UML, Rastriya Prajatantra Party and Nepal Sadbhavana Party later joined the rival Nepali Congress camp led by former prime minister Girija Prasad Koirala and three smaller radical left parties seeking the reinstatement of the House under Article 127.

The strong commitment of the prime minister to hold the elections was shattered when six parties declared that they were in a no position to face the people as scheduled in November. This decision paved the way toward the appointment of an unaccountable prime minister.

The UML and some Nepali Congress leaders proposed placing the constitution in a referendum knowing that there is no such provision in the basic law. Political activities hurtled in a direction where the breakdown of the constitution was inevitable. Be it the proposal to postpone the elections by a year or, dismissal of the prime minister, or revival of the House, neither course was in conformity with the spirit of the constitution.

When political parties, intentionally or unknowingly, ignored the constitutional process and decided against going for the polls, the basic law was destined to reach breaking point. Once political groups encourage unconstitutional methods and exercise authority exceeding their mandate, the fundamental law of the land, which is based on trust and faith, can only turn into a piece of paper.

The constitution was badly bruised in 1995 when the court entered political matters and rejected the order of the King to dissolve the house. "In 1995, the constitutional debate entered the political sphere. However, this time, political decision has overridden the constitutional process," says a political analyst.

Political parties are trying to create another hole in the tattered constitution. Participated by the six major political parties, a meeting held at the residence of Nepali Congress president Koirala requested King Gyanendra to correct his constitutional mistakes by following their decisions in appointing the new prime minister.

"How can these leaders correct the constitution by appointing a prime minister at their recommendation?" asks a constitutional lawyer. "And to whom would he or she be accountable? The constitution, which requires the elected prime minister to activate its articles, is lame."

The parties have not explained which clause the new prime minister should be appointed under and where he or she would be accountable. Can Article 27(3) give the King the power to appoint the new prime minister? The country's entire political and constitutional process was derailed when all political parties agreed avoid the elections.

"The constitution does not 'work', it is inert, dependent upon being 'worked' by citizens and elected and appointed leaders," says Granville Austin in his book "The Indian Constitution: Cornerstone of a Nation". Although the constitution has not envisaged a country without the prime minister, Nepalese found themselves without one for several days. What will be the constitutional status of the new prime minister appointed by the King? Will he be a prime minister as per Article 36(1), 42(1) or 42(2)? There are few processes for the appointment of the prime minister under the constitutional provision. Under which clause the prime minister is appointed and where his or her accountability lies remain to be seen.

"The recent act of the King is unconstitutional and is against the spirit of the constitution of Kingdom of Nepal. A constitutional monarch cannot exercise the executive order dismissing the popularly elected government," said UML general secretary Madhav Kumar Nepal, whose party is equally responsible for the breakdown of the constitution.

Unlike the UML, the other major parties seem to be in no mood to follow a confrontational attitude. "Provided exercising the executive authority, the King's action is politically justifiable," said Laxman Prasad Aryal, a former justice of the Supreme Court, who was a member of the panel that drafted the basic law.

"Dismissing the prime minister is a political decision. Once the King appoints the new prime minister under the recommendation of the six political parties represented in parliament, the constitution will automatically return to its former course," said Arjun Narsingh KC, spokesman of the Nepali Congress. "This is not a time to go into the words of the constitution but to work to put the constitution back on track by holding elections as early as possible."

According to the constitution, only popularly elected representatives can exercise the power bestowed in the constitution through the leader of the house or prime minister.

As former chief justice John Marshall of the United States said, a constitution is framed for ages to come but its course cannot always be tranquil. Nepal's constitutional course has always been in turmoil. All five previous constitutions succumbed to political instability and immaturity. This time, all political players, who were supposed to have used their wisdom, have pushed the country into new political turmoil by breaking the constitutional order. Although political parties and their leaders created the situation, the constitutional monarchy will have to bear direct criticism.

The derailed constitutional process can be corrected and faith can be restored. But what is required first is a reconciliatory approach between the monarchy and political parties. Taking the agenda to the streets will only breed greater instability and confrontation, which would go against the evolution of constitutional process.