Constitutionalism in crisisIronically, the final interpreter of the constitution, the Supreme Court, itself is mired in hazy confusion.
The "federal republic" constitution of Nepal completed only seven years of its promulgation last week. This seventh constitution, in experimentation in as many decades, already reels under a grave existential crisis, thanks to a multitude of violations and lack of ownership of a number of its critical provisions by none other than the political forces who painstakingly drafted it taking seven long years and enforced it in 2015 amidst several adversities.
President Bidya Devi Bhandari's failure to authenticate the Citizenship Bill which, after repeated adoption by both houses of the federal Parliament, was resent to her in accordance with Article 113 Clause 4 of the constitution is at the heart of the current constitutional debate. Clause 5 of the same article states, "A Bill shall become an Act after the president authenticates it." Apparently, the constitution has not conceived the possibility of the president not authenticating it. This indeed also appears as a serious fault line in the related constitutional provision. For example, had this provision instead stated that upon resubmission of the same bill after re-ratification by both houses, it shall automatically become law even if the president fails to authenticate it, there would be no ambiguity.
In the absence of such clarity, not only has the very future of this crucial Bill become uncertain, but it nullifies a very critical constitutional arrangement by the deemed protector of the constitution—the president. The cardinal question in the episode is not about the merit of the bill, but whether a ceremonial president can use her discretion beyond the explicitly articulated constitutional process.
In addition, it has happened at a time when the constitution was getting increasingly wider ownership. The Tarai-Madhesh-based parties, which had vehemently protested against it in the initial years, are now participating in the electoral process without much qualms. And the president has been consistently and widely alleged to have acted in this fashion at the behest, perhaps also in the interest, of her mother party, the CPN-UML, which was instrumental in fast-tracking the enforcement of the same constitution back in 2015.
Politically, what exactly the main opposition UML's game plan could be in so instigating the president is anybody's guess. As the five-party ruling coalition so far appears resolute to go ahead with their seat-sharing arrangement to contest 165 federal and 330 provincial parliamentary constituencies, the UML is desperate to break the coalition if possible, or, try to postpone the polls scheduled for November 20. It is apprehensive of near obliteration in these polls if the ruling coalition remains intact.
The way UML chieftain KP Oli is defending the president's refusal to authenticate the Citizenship Bill, he seems to be aiming at two birds with a single shot. One, if the president's (in)action ignites nationwide protests and widespread lawlessness, that might dig the grave of the proposed elections. Two, the citizenship issue in the whole of Nepal's modern history has carried nationalistic rhetoric, though more often than not with a pro-monarchist regressive and exclusionary fervour, and the political plank embraced by the party is expected to milk more votes. Thankfully though, the ruling coalition is not reacting radically, and now the issue has entered the Supreme Court for interpretation of the constitutional spirit surrounding the president's acts vis-à-vis constitutionalism.
Flux is wider
A fresh controversy regarding the termination of the tenure of Speaker and Deputy Speaker of the House of Representatives has erupted. The interpretation of Article 91 (6a) of the constitution which says, "The Speaker and the Deputy Speaker of the House of Representatives holding their respective offices shall continue in office until the previous day of the filing of nominations for another election to the House of Representatives." One interpretation is that the submission of the closed list of candidates by the political parties meant for proportional representation that ended on September 19 is tantamount to "filing of the nomination", thus, this provision is invoked. But the incumbent Speaker and Deputy Speaker are insisting that the clause only refers to the "nomination" by the candidates for the first-past-the-post election. The spirit of the current constitution is in fact akin to the former than later argument. This issue has also been taken to court.
Ironically, the final interpreter of the constitution, the Supreme Court, itself is mired in hazy confusion and unprecedented uncertainties. Chief Justice Cholendra Shumsher Rana, suspended since last February after the filing of an impeachment motion by 98 members of Parliament of the ruling coalition, still hangs in limbo. The term of the House of Representatives ended last week without taking the impeachment process to a conclusion. The ruling parties unfairly procrastinated impeachment hearings by the concerned parliamentary committee.
Rana is exerting his muscles to rejoin his duties as the chief justice of the country whereas national opinion is divided on whether he should be allowed to return to his duties or not. The main opposition UML is advocating for his reinstatement and the government is determined to prevent him from returning to his post. He now alleges the government of keeping him under house arrest. It may be recalled that Rana was impeached following months of deadlock in the country's judiciary after the lawyers and his own bench colleagues refused to work with him due to manifested and unabated malpractices in his self-interest at the cost of the very reputation of the judiciary. Acting Chief Justice Deepak Karki who had taken over since the suspension of Rana also retires on October 3; before the resumption of the offices after the Dashain holidays.
The machinations of divisive politics already have taken their toll on the independence and impartiality of the judiciary. The government is strategising to maintain the status quo until the date of his retirement on December 12, and the opposition is keen to make its position to reinstate Rana a political fuel for the upcoming elections. Clearly, both intents are in detriment to globally established best practices of constitutionalism.
In a nutshell, all putatively responsible stakeholders—the president of the country, political parties, the government, the federal Parliament and the chief justice—supposed to be upholding the spirit, process and practices enshrined in the constitution, are rather deliberately flouting them to the hilt. This puts the future of Nepal's nascent constitutionalism in crisis, once again.