Parties Have No Faith in Democracy

Yuba Nath Lamsal

Despite the public commitment expressed by the leaders of various political parties, political consensus is still elusive. The political logjam continues simply because parties have accorded more priority to the government rather than seeking genuine problem facing the country. As long as parties make the government as their priority and prestige issue, solution can never be sought and the country would continue to face the political uncertainty, instability and chaos.

The opposition parties mainly the Nepali Congress and the CPN-UML have made the change of the government as the sole precondition for consensus. But the ruling Maoist-Madhesi coalition has maintained that the present coalition government should be given the shape of national unity government. This implies that the present government headed by Dr Baburam Bhattarai should be given continuity until the fresh election is held. Under these circumstances, the Nepali Congress and the CPN-UML have to either present a candidate with written proof that all parties are willing to  accept him or her as the consensus prime minister  or join the present government. However, the national unity government does not appear plausible as no party seems to be willing to see the rival party to head the next election government. Every party especially the three major parties aspiring to lead the next government and reap benefit of state power in the election.

As far as giving the shape of national unity government to the present government is concerned, it too does not seem possible. The opposition parties have refused to join the present government. Their logic is that the Baburam Bhattarai is already a caretaker Prime Minister after the demise of the Constituent Assembly and the government under Bhattarai cannot be national unity government. If that logic is to be made a yardstick, no institution would be legal and legitimate which had been elected by the same institution and same process as Prime Minister had been elected. Prime Minister Bhattarai was duly elected by Legislature-Parliament, so are the President and the Vice President. If the question about the legitimacy of the Prime Minister is raised simply because of the demise of the Constituent Assembly, the legitimacy of other institutions may also be definitely raised.

In this complex political situation, question about Prime Minister’s legitimacy is aimed at creating constitutional vacuum. From the perspective of constitutionalism, the Prime Minister is legitimate and there should not be any efforts from any side to dislodge the Prime Minister through unconstitutional and illegitimate means. If the Prime Minister is to be relieved from his duty through constitutional and legitimate process, it can be done only by parliament. Some parties are trying to provoke the President to remove the Prime Minister. If the President at all takes action as per the demand of the opposition parties, it would be yet another undemocratic, illegitimate and immoral act, which would set a very bad precedent in the Nepali politics for ever. If the elected Prime Minister was removed through unconstitutional and illegitimate means and manners, the country and democratic process will have to pay a heavy price in future. Moreover, the next Prime Minister, if appointed in a manner what the Nepali Congress and the CPN-UML have been demanding, would be more illegitimate and unconstitutional, which may not be acceptable by the people.

Against this background, the solution can be sought politically on the basis of consensus among the existing political forces of the country. The political decision too should ultimately gain constitutional legitimacy. In the present context, the only legitimate political and constitutional way would be the revival of the Constituent Assembly, through which the government can be changed and also the constitution amended to pave the way for the fresh election. While the fresh election cannot be held without effecting amendment in the election related clauses of the constitution, the amendment of the constitution can only be made by the Legislature-Parliament, for which the revival of the Constituent Assembly is, thus, a must.  We need to acknowledge the fact that the amendment of the Constitution through Presidential decree would set another bad president, which may not be compatible with the universally accepted democratic principles, norms and values. The undemocratic and illegitimate method would never reap positive results. Thus, seeking amendment of the constitution through presidential decree would ultimately give rise to another dictator and dictatorship, which would by no means be in the interest of the country, people and our fledgling democratic polity.

Now we have only three democratically elected and representative institutions. They are President, Vice President and the Prime Minister. President and Vice President are ceremonial which do not have executive power as per the constitution. Prime Minister is the executive chief, which has the power to take decision on behalf of the people. Once the elected Prime Minister is removed through undemocratic means, it would create constitutional and political vacuum. Perhaps, this is the exact situation some rightist and reactionary elements at home and abroad want in Nepal so that they can fish in troubled water and reap political benefit. Their design is to sabotage and reverse the entire political process that is underway in Nepal for the last six years since the signing of the Comprehensive Peace Accord.

This piece of write up is not intended to defend the present government. This is simply an effort to draw the attention of our political parties and their leaders towards the political ground reality and constitutional provisions. If political consensus was reached among the major political forces of the country, the government may be changed politically but not constitutionally. In that case, it may have popular legitimacy. In the political terminology and constitutionalism, popular legitimacy and constitutional legitimacy are two different terms that have different connotation. Constitutional legitimacy and sovereignty may not necessarily be political and popular legitimacy or vice versa. The Interim Constitution itself is a document of political compromise, which lacks constitutional legitimacy if analyzed from the perspective of constitutionalism. But it was accepted on the basis of popular sovereignty and legitimacy. The Interim Constitution was drafted and promulgated through a mechanism built on the basis of political decision. It was necessary at a time when the old Constitution had virtually been defunct because the Jana Andolan II had defied and rejected it demanding the new one.

Political decisions prevail more than the constitutionalism at the time of great political upheavals. But the constitution has to be strictly followed once the new constitution comes into effect. Present situation cannot and should not be compared with that of 2006, when popular movement had replaced the political system. Now the Interim Constitution is at work and this document must be followed in its letter and spirit. The Interim Constitution should by no means be undermined in the name of political decision.

Now special situation has arisen in Nepali politics. We have neither parliament nor constitutional way out to steer the country out of the present political stalemate. The Constituent Assembly failed due to inability of political parties to arrive at a compromising point on the issue concerning federalism. The Constituent Assembly had already been extended for two more years and the Supreme Court’s decision prevented another extension. The government then announced the fresh polls for new constituent assembly on the basis of the Supreme Court verdict that gave the option of fresh election in case the constitution was not promulgated within the deadline. But the opposition parties opposed the election. Now the same parties that had earlier opposed have demanded the election whereas the parties that declared election are seeking the revival of the Constituent Assembly. Nothing can be greater irony than this. If the opposition parties really wanted the election, they should have worked out a constitutional way out for the fresh election when it had been announced earlier.

This is the tactics of the parties and leaders to have upper hand in politics. It seems that leaders have no faith in democracy and free election. They want to conduct the election under the government that is favorable to them, which implies that they want to win election by manipulating state apparatus and stealing votes rather than winning the confidence of the electorates through their superior policies, programs and good conduct. If it was not the case why parties are scrambling and jockeying for the leadership of the election government and are not prepared to accept the election held under other government. This is more with the Nepali Congress, which does not have confidence of winning election held under others’ government. In all four elections after the 1990 political change were held under the Nepali Congress-led government. Even then Congress won only two elections in 1991 and 1999 and it lost two elections in 1994 and in the Constituent Assembly election in 2008. But all elections that were held under the Nepali Congress government were not rigging free. Since it lost the election held under its own government, the Congress now fears that its performance may be poorer if elections are held under the government headed by its rival party. This becomes clear that parties in power always have advantage in election and they want to reap that benefit in the next election. This is the bone of contention in the present context among the parties.