With the postponement of the Constituent Assembly (CA) election from June 20 to June 26 and then again to November 22 and now indefinitely, the legitimacy of the present government is in question. Of late, it has been a common observation that the present government has lost its legitimacy as it has failed to hold CA polls within the stipulated time. Such perceptions clearly express people’s disapproval of the postponement of CA polls.

Simultaneously, such expressions clearly discredit the government for its failure to maintain law and order, and indicate people’s dissatisfaction with the working of government institutions — its various departments and ministries. Ordinarily, when the question of legitimacy is raised, it seems to be over its legal basis as it appears to be related to some law. To some extent, this is true. The word “legitimacy” is a noun from which the adjective

“legitimate” has been derived. In a legal context, any provision is legitimate only if it is acceptable to the law or is in accordance with the rule of law. But broadly speaking,

any act or any institution is said to be legitimate if its legitimacy is based on some valid grounds that are commonly accepted as fair and reasonable.

We are passing though a crucial period of transition from armed conflict to the continuously unravelling peace process. The commitment to hold CA polls was made the main plank on which the end to the decade-old insurgency was decided. Accordingly, the 12-point agreement was reached between the seven party alliance (SPA) and the Maoists, which received countrywide support, as was reflected in the 19-day-long April movement until the king surrendered all his powers to the people, thus proclaiming restoration of the dissolved House of Representatives (HoR).

Subsequently, both sides declared ceasefire, the House was restored after a gap of almost three years and a new SPA government (one party did not join it) was formed. The government and the Maoists signed the Comprehensive Peace Accord in November 2006. Accordingly, the Interim Parliament (IP) known as legislature-parliament having significant representation of the Maoists framed an Interim Constitution (IC). The Maoists joined the government only on April 1, 2007.

However, the Maoists’ fifth extended central committee meeting took a strategic decision of quitting the government and its ministers resigned en block on Sept. 18 when their two main political demands — pre-poll declaration of a republic by the Interim Parliament and adoption of fully proportional representation system for the election — were not met. Since the seven party alliance could not agree on these conditions, the parties decided to postpone the polls to sort out their differences rather than break the alliance, which would have been disastrous for the political future of Nepal.

From the way the political evolution has taken place, it is difficult to pinpoint where the chain of legitimacy was broken. One can easily debate the legitimacy of the whole political process that was set in motion following the King’s proclamation that resulted in the restoration of the dissolved House. The constitutional ground for the formation of IP or adoption of the IC is also questionable. In truth, the mandate of the people’s movement was all the political parties had to go by. The IC says in Art. 63(2) that the CA election will be held on the date fixed by the government. Hence, it is difficult to question the legitimacy of the government on its failure to hold the election as it has been authorised to fix the poll date. Had the IC fixed a certain time limit for the holding of CA polls, the government could have been censured

for the delay or the non-compliance and labelled illegitimate. Having said that, the IC also does not give the government the liberty to hold the election at its own sweet will. Free

and fair elections should be held within a reasonable timeframe. Indefinite postponement of the polls will not at all be acceptable to the people.

In Myanmar, the party that got two-thirds majority in 1990 general election was not allowed to form a democratic government by the junta, which has been trying to dismantle the legitimacy of the political parties for the last 16 years. Similarly, in 2002, against the provision of the constitution, the king seized all powers while dismissing the elected government.

Was his regime which lasted till his proclamation on April 11, 2007, a legitimate one? About 238 years ago, Prithvinarayan Shah overthrew the Malla rulers. Was his rule legitimate? The answer invariably will be in the affirmative — yes! It is because the political change took place by dint of might or military strength. The present government can be replaced by an elected government or by any other government. Till such a time, the government is legitimate for all practical purposes.

Prof Mishra is ex-election commissioner