Is Nepal facing constitutional crisis? By Kamal Raj Sigdel

The Kathmandu Post, May 13
KATHMANDU, May 12 - If the prevailing political polarization continues, it could lead the country to a constitutional crisis, according to experts. And early signs are ominous.
It all began with Prime Minister Pushpa Kamal Dahal failing to seek consensus from coalition partners on the removal of Chief of Army Staff Rookmangud Katawal last Sunday and President Ram Baran Yadav overriding the prime ministerial directive that very day.
“The Interim Constitution has nowhere envisaged a situation where prime minister and president operate in two different directions,” says Laxman Aryal, who led the team that drafted the Interim Constitution.
If the row over Katawal began the slide towards constitutional stalemate, subsequent events de-monstrated that constitutional breaches have become commonplace.
The parties have failed to form a new government since Prime Minister Dahal resigned last Monday, a day after the presidential overruling. According to the Interim Constitution, the parties have to form a government based on political consensus, and failing to do so, allows the president to call on the parties to form a government through majority vote in the Constituent Assembly (CA).
If the parties fail to form a government as per Article 38 (2) of the constitution, a constitutional crisis is inevitable given the fact that the constitution has given no other option -- for example, formation of a minority government. President Yadav has already directed the parties to go for majority government, which, say experts, is not a normal development “at this point of time” for two reasons.
First, opting for the 'politics of mathematics' is itself a constitutio-nal aberration as the constitution stresses on consensus, according to Daman Nath Dhungana, who was a member of the committee that drafted the 1990 constitution. Sec-ond, to approach government formation with the assumption that a majority vote can be garnered in a hung parliament is in itself a wrong premise, argues Govinda Bandi, a constitutional lawyer.
“Morning shows the day,” says Bandi. “That the parties have to look to form an elusive majority government in a hung parliament clearly shows the country is heading towards constitutional crisis.”
Try unraveling the Gordian knot and it gets even tougher. The Maoists have declared they will not let the House function until the President corrects his “unconstitutional” move.
This precludes exploration of any constitutional possibilities, according to Bhimarjun Acharya, a constitutional expert.
“Even if the Maoists let the House function, it is most unlikely that Nepali Congress and CPN-UML -- which are trying to lead a new coalition -- will be able to operate a government without Maoists,” adds Bandi.
And the breakdown of politics of consensus will have long-term repercussions.
In normal situation, the case would land in the Supreme Court, which would then resolve the crisis. “But this is a political issue, not a legal one,” says Acharya. “This therefore can only be resolved politically, not legally.”
Posted on: 2009-05-12 19:32:19