Dr. Gyan Basnet
Eurasia Review
December 31, 2013
In Nepalese politics, the term of office of the president and vice-president has become a matter of major dispute among the political parties following the November 19 Constituent Assembly (CA) election. The country adopted the presidential system when it overthrew the 240-year long institution of monarchy in 2008. When the first CA was unlawfully dissolved last year without accomplishing its mandate, the government collapsed, but the tenure of the head of state and his deputy continued.
The interim constitution of Nepal provided that the tenure of the president would be valid until the promulgation of a new constitution. It was, however, silent on the tenure of the vice-president. Some political parties now wish to see the incumbent President, Ram Baran Yadav, remain in office under the provision of the interim constitution. Others, however, allege that that provision applied only during the period of the first CA and that the second CA should now elect a head of state in line with the people’s mandate. The people must take into account some important questions: Does unnecessary debate among the political forces over whether to change the president not plunge that very institution into political controversy? Should the country not be intent on establishing clear precedents for future practice?
There are many questions that need to be taken very seriously: do, for instance, the articles and sub-articles of the interim constitution really provide guidance on the issue of presidential tenure of office? The interim constitution as a political document and as part of the political agreement has been amended more than a dozen times over the years and has even been amended by many presidential ordinances. Ignored as it is by political players and big bosses, can it really have meaning in the changed political context in the country today?
After the dissolution of the first CA, did the political player act in accordance with the constitution or, rather, in accordance with the so-called political agreement between the parties? These questions must be considered seriously. I wish here to make a few points as examples of why we need a new president in order to address the new political situation in the country:
Firstly, the case is simple and straightforward. It is general practice in any democracy to elect a new face as president or prime minister following an election. To address any changed political circumstances, a new president should both be elected through the new assembly, which is the supreme people’s body in our country. The nation must prepare a dignified exit for the current president and vice president thus establishing a good democratic tradition and culture. The presidential system is quite new to us as a nation, and it is vital that we establish good customs from the very beginning.
Secondly, the result of any election indicates the people’s will to change or to retain the status quo. The present mandate is a clear message to change the actors and political forces that have operated under the previous mandate to run the country. The people have spoken out loudly and clearly, and they have expressed their desire for change. Their new mandate is a legitimate demand for a new face at the Sital Niwas. The people who voted did not do so by observing or reading the articles and sub-articles of the constitution or its provisions on the tenure and function of the president. They indicated that they wanted change in general: will it not then show great disrespect for the will of those people if we do not change the actor who is running the country? What is the point of having a new assembly and a new mandate if we do not change the faces in political offices such as the presidency?
Thirdly, the interim constitution stipulates that the term of office of the present president shall run ‘until the commencement of the constitution to be promulgated by the Constituent Assembly’. Even if we follow the strict meaning of this provision, there is no suggestion that an individual should occupy the office of president indefinitely. Most important, the constitution states: ‘The Constituent Assembly shall elect the president.’ In this case, we need to ask if the second CA should be regarded as a mere continuation of the demised first CA?
The answer to that must be absolutely no. The second CA results from a new mandate from the people: it came into being to address a changed political situation. Even though both CAs share the same aims and agendas and both are supreme in themselves they should be treated as being independent from each other. Why then should the new assembly not elect a new president? How can the present president continue to occupy the highest office of the country in this changed situation? Why should a few self-declared ‘fat cat’ constitutional lawyers be allowed to support that view? What about common sense? One does not have to be an expert in political science or a constitutional lawyer to understand what common sense tells you.
Finally, above principles, values, laws – even constitutions – stand moral authority and ethics. Morality in politics is vital: it is the rock on which foundational norms are constructed and a pathfinder for society and individuals alike. On moral grounds, should the president not prepare to play a positive role by resigning from his post rather than await a push from the political parties or their leaders? Why is he prepared to allow his respected institution to be dragged into political controversy? In this difficult time, should he himself not act positively by declaring his resignation in a respectful manner? Should he not act positively as mediator, protector and respecter of the institution of the presidency? I firmly suggest that if Dr Yadav wishes to be the next president and his affiliated political party wishes him to be their candidate for the next presidency; he should enter the contest in the new assembly, get elected and return to the office again. Nothing should stop him from doing that.
I firmly believe that the new mandate demands a new face at the Sital Niwas. The new president must be elected through the assembly in accordance with the norms of the interim constitution, existing democratic principles and the new mandate. A fresh start would represent the most democratic practice and show great respect for the will of the people. However, a strong warning must be sent to the politicians that they should not take long in identifying the next president of the country. The presidency is, and should be, a highly respected institution. It should stand above partisan politics and be free from political khichatani. It should not be used as a political bargaining point among parties intent on power grabbing. Nor should it be used to ignore the popular mandate and destroy the hopes of the people for a speedy end to the overlong political transition, the lawlessness and the deep political uncertainty.
The political parties must act speedily in negotiating power sharing, forming a government and sorting out the presidential issue. At all times the national interest must dominate the politics and be the central element of any debate. There is no time to waste. The new assembly must aim to be result-oriented from the very outset. If the political forces fail to produce a constitution ‘within a year’ as the largest party in the assembly promised during the election, the people will certainly never forget. I strongly suggest that the politicians constantly bear in mind the next election! The drafting of a new constitution that is acceptable to all is their first and foremost duty: indeed, it is a legal obligation on the new assembly aimed at giving the country a clear exit from its troubled past, a durable peace, and political stability.
Dr Basnet holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K.
