Does 2021 Bring A Looming Constitutional Crisis in Nepal?

01.27.2021 | Deependra Chaulagain, Akash Shrestha

The personal interests of Nepal’s political leaders do not align with the aspirations of Nepali citizens. That is why the fate of the world’s youngest federal democracy is again uncertain.

When the country held general elections in 2017, giving the federal government a two-third majority, there was great sense of hope among ordinary Nepalis that they had secured political stability. General sentiment was that an agenda of economic growth, which had long taken a back seat due to political tensions in the country, was again the main national agenda. But the “constitutional coup” carried out by the Prime Minister last year puts Nepal back at square one.

What is happening:

On December 20, 2020, Prime Minister KP Oli dissolved the House of Representatives and called for early elections amid rising tensions within his party, the Nepal Communist Party (NCP). He claims that constant bickering within the party and the subsequent lack of support from his own fellow comrades to make decisions were leading the country to a state of prolonged limbo, leaving him “no choice” but to go back to the people for a fresh mandate. Currently, the issue is under consideration at the Constitutional bench within the Supreme Court.

PM Oli wrongly interpreted the constitution. Article 76 (7), which he claims to have invoked, does not apply under the current circumstances. Article 76 (7), which authorizes the president to dissolve the HoR on the recommendation of the Prime Minister, can only be invoked when all other measures to appoint a Prime Minister have been exhausted. PM Oli, however, on the date of the dissolution still commanded a two-thirds majority in the parliament.

While Oli has vociferously stated that the dissolution of the House is because of  contemporary political developments and therefore the court should stay out of it, the case has already entered the court. Constitutional experts maintain that PM Oli’s opinions hold no water. Constitutional expert Dr. Bhimarjun Acharya points that the issue of dissolution of the House has already been discussed at the court in four different instances in the past. As such, Oli is simply engaging in a disinformation campaign when he claims that the constitutional practice in Nepal is that the court does not intervene in political matters.

How did Nepal get here?

In 2015, Nepal’s new Constitution adopted federalism and replaced the unitary structure of governance. This long-awaited change charted out hope for genuine representation and economic freedom. Nepal’s major political revolutions, at the rate of one per decade over the last seventy years, had come largely because no standing political system was able to deliver tangible economic benefits to the lives of people. This is precisely the reason why the new constitution of the Federal Democratic Republic of Nepal laid down “prosperity” as one of its core agendas. Subsequently, every political party built an election manifesto around this common agenda.

courtesy: Hamrakura.com.

When the ruling Communist Party of Nepal (Unified Marxist Leninist) (CPN-UML) and Communist Party of Nepal (Maoist Centre) joined forces to form a combined communist force and went to garner a two-third majority in the Parliament, the country seemed headed for a new era of political stability. The hierarchy of the thus merged party had been put on hold until after the elections. After a series of political negotiations, the party settled on two co-chairs: KP Oli and Pushpa Kamal Dahal (known by his nom de guerre Prachanda). KP Oli would lead the government as the Prime Minister, and Prachanda would be the leader of the Communist Party of Nepal.

Since then, PM Oli pushed through two ordinances to amend the Political Parties Act and the Constitutional Council Act in an apparent move to split the party. That has  severely soured the relationship between the two chairs. Both ordinances were called back later, but intra-party tensions remain. When provincial assembly members of Karnali (Province #6) filed a vote of no confidence, allegedly from Oli faction, against the provincial CM, the relationship soured further.

The “constitutional coup” carried out by the Prime Minister last year puts Nepal back at square one.

In retaliation, Prachanda joined forces with Madhav Kumar Nepal. Together, Prachanda-Nepal faction would have a majority in the provincial assembly, and thus the no-confidence movement did not go through. In the days that followed, PM Oli held meetings with the Indian Intelligence Chief, made a series of ambassador appointments and reshuffled the Council of Ministers while avoiding any consultation with the party co-chair.

When the executive chairman Prachanda made multiple calls for party secretariat meetings seeking debriefing on the discussions with the Indian delegation as well as clarification on ambassador appointments and cabinet reshuffle, PM Oli refused every single time. Soon after, another ordinance was issued amending the Constitutional Council Act.

Before the Prachanda-Nepal faction could make a move in the House of Representatives – likely a vote of no-confidence against the PM and an impeachment motion against the President, PM Oli dissolved the House and called for fresh elections. Discussions on the constitutionality of the move are currently ongoing in the Constitutional Bench. In a nutshell, there is still no certainty about what direction national politics will take in the days ahead. In fact, this is how Nepali politics have always been and it is not good.

What lies ahead for Nepal

Will the Supreme Court give an impartial verdict? Will the elections happen on time? Who will lead the government to elections? Will we see Chief Justice being sworn in as the Chairman of the Council of Ministers, again? Or will PM Oli government announce a state of emergency and take matters in his own hand? When all dust settles, who will come out as victorious and who will have lost? What of the past struggles and current dreams and aspirations of the Nepali people?  These questions are being discussed across Nepal at the moment.

Just weeks before the coup, PM Oli had made a widely criticized remark about how the provincial governments are mere functional units of the federal government. While the statement was a direct attack on the spirit of the Constitution, it paints a clear picture of how the political leaders view Nepal’s federalism itself. The leaders at the federal level hold a significant influence over the sub-national level leaders and there is a real risk of the federal politics permeating into sub-national levels across the country. In fact, this has already started to be seen. On December 25, some 45 members of the Provincial Assembly of Bagmati filed a no-confidence motion against the Chief Minister Dormani Poudel, a close aide of PM Oli.

For an ordinary Nepali citizen, this is yet another instance of political developments derailing democracy, stability, and the process economic development in Nepal. There were already voices against federalism. To this crowd, the current developments only strengthen their own convictions and in fact may lead others to question whether democracy will ever really deliver. That is one the greatest risks facing Nepal.

Nepali politics is, in its current shape, seemingly an ominous mix of cunningness, corruption, and immaturity.

Voters had hoped the winter session of the House would act on a number of key legislative pieces. For example, it should amend excessive, arcane and often inconsistent legislation that slows  the flourishing of the economy in Nepal.

When the communist forces merged and went on to secure a two-third majority at the House of Representatives, they had the power to steer Nepali politics in any direction they wished. This was already a great threat to democracy and people’s civil and political freedom. One silver lining, therefore, is that the call for elections gives people a chance to review their choices.

Does a democratic Nepal have what it takes to deliver prosperity?

The answer, unfortunately, seems to be no. Nepali politics is, in its current shape, seemingly an ominous mix of cunningness, corruption, and immaturity. Cunning in that the leaders know well how to get what they want and will go to any length for private gains, and immature in that they neither have the experience to, nor are keen to, be tested under a transparent, fair system.

This is therefore a time to advocate, strongly, for expanding the freedom of the Nepalis – freedom of expression, freedom to have and pursue economic opportunity within Nepal, the freedom to have transparent and participatory economic governance, and to limit the scope of government, especially as it leans towards authoritarianism.

The basic principle of constitutionalism is that a Constitution provides for the rights of people, and therefore limits the government. As Nepali political leaders ignore the Constitution while seeking their own power, a democracy that delivers prosperity slips further out of reach for ordinary Nepalis.

 

Deependra Chaulagain is the Director of Operations and Outreach and Akash Shrestha is the Research Manager at the Samriddhi Foundation in Nepal.