The still elusive national consensus Searching for the clues
In the aftermath of the now former Prime Minister Pushpa Kamal Dahal’s resignation, Nepal’s opposition parties are calling for a new national consensus. In the current economic division in Nepal between an extreme poverty of rural masses and unjust enrichment by a few urban elites, Dahal represents the left political landscape, and President Yadav. represents the rightwing political spectrum. Consensus is urgent given the volatile situation of one State with two armies. But the question is: How should consensus be reached? It is a haunting issue that has proved elusive despite the much talked about importance of national consensus.
Constitutionalism is the key for consensus building. No matter whether Nepal will have a new national coalition government or be governed by a coalition-of-the-willing, some constitutional principles must be strictly followed. First and foremost, the principle of “No Taxation without Representation” must be established once and for all. Secondly, at this current juncture, it needs to be determined whether the Presidential system of government is more desirable than the present executive Prime Ministerial system.
Thirdly, above all, sovereignty of the people must be realized in line with the strict notion of constitutionalism. These are important principles not only useful to correct the past mistakes, but to draft a new democratic constitution.
Every citizen of Nepal must realize that the inclusion of non-elected persons in the government is a
gross violation of the principle of representative democracy. But the first republican government of Nepal included a number of non-elected individuals in the cabinet. These unelected individuals, according to the parliamentary system, should have been elected within a stipulated time by the law, but it never been considered seriously or has been ignored. Such constitutionally illegal practices must be rejected. After all, “No Taxation without Representation” is the one and only universal principle of democracy.
The Constituent Assembly (CA) election, which was held on April 10, 2008, was the exercise of people’s sovereignty and representative democracy. However, this very principle was violated by the C by allowing unelected individuals in the coalition government, formed after the election, led by the Maoists. It was
a collective illegal act of
all political parties represented in the CA. This
has to be corrected before the formation of a new
government. Nepal’s civil society must initiate measures in correcting these constitutional errors.
Nepal’s Maoists gained legitimacy through the CA elections and emerged as the single largest party of Nepal. The CPN-Maoist led collation government was constitutionally formed. Yet, despite the written agreement for an integration of the two armies the country failed to build a new Nepali army, while the Maoist fighters are in cantonments.
Under this situation, an alliance seems to have emerged between Nepal’s President and its army chief. This alliance is being supported not only by the party in the opposition, Nepali Congress, but also the Maoists’ former coalition partners the CPN-Unified Marxist-Leninist (CPN-UML) and Madhesi Janadhikar Forum. One may question the need and
timing of this alliance, whether it is aimed at
pushing the Maoist army into the conflict once again, or an attempt to derailing the democratic development of the republic.
A new national consensus among various political parties can begin with a commitment to the recognition of the supremacy of the CA (not to be confused with the so-called Legislative Parliament). The CA is not only the guardian of the constitution, but also the mother of the constitution, the only supreme body exercising the people’s sovereignty. Its supremacy is more than the Supreme Court, as well as the executive Prime Minister and/or constitutional President.
The unanimously elected CA Chairperson has the right to summon the President and Nepal army chief, and proceed with further actions against them by and through discussion in the CA. And, the Chair also can summon the judges of the Supreme Court, and establish the fundamental constitutional principle
of the representative government. Political issues must be dealt with politically, and the CA should not allow the Supreme Court to be involved in it.
Even if Nepal’s Interim Constitution is written so that it makes the President the guardian of the constitution, it does not supersede the CA’s authority (any legal argument otherwise is just an ill-informed lawyer’s
way of working against constitutionalism). In my opinion, constitutionally speaking, the Prime Ministers’ resignation is a challenge to the legitimacy of the President. Nepal’s current system of the government is clearly based on the parliamentary system of government with an executive Prime Minister, and not the Presidential system.