Bijay Aryal

The quest for the next prime minister continues. The agitating political parties are speaking of “bringing the derailed constitution back on the rails” through the “correction” of the regression committed by the King on 4 October 2002. Constitutional “experts” are floating their views of how the constitutional process can be revived but most of their opinions have been coloured by the particular political parties or the palace they feel closer to.

Therefore, what constitutes the correction has varied. For the RPP and the NSP (Mandal), the King has committed no regression. For Sher Bahadur Deuba’s Nepali Congress (Democratic), the reinstatement of his date-expired government would right the wrong. The five parties, including the breakaway NSP (Ananda Devi), are pushing for the appointment of prime minister on their recommendation. The King has indicated that he will appoint the next prime minister under “Article 127” while the five parties insist on one under “Article 128 (2).” And some, particularly the Nepali Congress, still hope to get the parliament restored. Some constitutional “experts” hold that any government to be formed has to be based on some article of the Constitution. And there are those who maintain that, if done with good intentions, even such a step by the King can command legitimacy.

But the facts tell a different story. It is clearly spelled out in the 1990 Constitution that the King cannot make a discretionary use of Article 127. The recommendation and consent of a duly formed cabinet is mandatory. Recognising any government under “this article” would also be recognising the “authority” of the King to make or unmake governments. The widespread fear is, however, that the five parties may fall into this trap in the name of forming a “powerful all-party government.” After the resignation of Lokendra Bahadur Chand, they were virtually ready to accept it. It is another matter that, even under this, Surya Bahadur Thapa, allegedly on the advice of “friends” from across the border, was chosen over the five-party consensus candidate Madhav Nepal.

It would prove suicidal if the five parties agree to a government formed under “Article 127.” If the Chand and Thapa governments were illegitimate, no other government similarly formed can claim to be a legitimate one. Article 128 (2) was an ad hoc arrangement for the post-Jana Andolan interim period. The dissolved parliament has passed its normal five years. The Supreme Court has upheld the dissolution.

Look at how the royal consultations are going on. The King had not seen fit to consult similarly, unlike his brother King Birendra, when the prime minister had recommended the dissolution. Nor did he think fit to hold such consultations when he sacked Deuba. Now he is enacting the drama his father Mahendra had done during the first eight years of the 1950s, appointing and sacking governments.

The Constitution is more or less defunct. At present, there is no constitutional basis for the formation of a legitimate government. It was the supreme duty of the Supreme Court to prevent the Constitution from breaking down when the issue came before it. But it utterly failed to rise to the occasion — the way it unanimously upheld the dissolution, refused to consider a petition against the October 4 step, and has let a petition for a review of its verdict on the dissolution be hanging fire for two years. Even in Pakistan, five Supreme Court judges had refused to swear allegiance to Gen Musharraf.

The King has already embarked on his journey of self-aggrandisement. He is only talking of delegation of authority “vested in him” to the next prime minister. By implication, he can take back those powers when he thinks his appointee has failed to deliver. Hence, the qualifications for prime minister he has fixed. He sacked Deuba for his failure to hold the polls within six months. But he himself could not set a poll date in 19 months. Chand and Thapa had to pay for this failure. The next prime minister is bound to meet with the same fate if the government is formed on the terms set by the palace.

However, they might go a considerable way towards returning the people’s sovereignty and powers if the next government is formed after the fashion of the 1990 interim government. It will have to be a political decision outside the comatose Constitution. So a momentous decision faces them. If they make a misstep, they will have to pay dearly later on.

The parties also stress the need to bring the Maoists “into the political mainstream.” The regime and its foreign backers are paying lip-service to political settlement. But on their terms. This would mean a virtual surrender of the rebels. This, along with their rejection of the UN offer of mediation, forms the main stumbling-block to any chance of a political solution of the Maoist issue within a fully democratic framework. There is another danger that the next prime minister might end up lending greater legitimacy to the military campaigns than promoting a political settlement.

Ironically, the very powers that have been bolstering regression from the start are now working for a “reconciliation” between the palace and the parties. The political leaders are assuring the public that they will no longer be taken for a ride. They should avoid settling for anything less than the1990 democratic gains in the least. For how they will go down in history, we have to wait a couple of days.