In Nepal, a deadlock, a likely confrontation

When, on June 8, Nepal’s four most prominent parties struck a deal to move ahead with the framing of the Constitution and leave the issue of delineating Provinces that would be the basis of the federal structure to an expert committee, there was hope that finally things had begun to move. But only 11 days later, the Supreme Court of Nepal issued an interim order to halt the implementation of what has come to be known as the 16-point agreement. This effectively has brought the momentum crashing down. 

The four parties involved still believe that a way can be found to go ahead. But it is difficult to imagine how that will be possible. Surely, the coalition Government of the Nepali Congress and the Communist Party of Nepal (Unified Marxist-leninist) as well as the Opposition Madhesi Janadhikar Forum-loktantrik and the Unified Communist Party of Nepal (Maoist) are not planning to ignore the apex court’s order. Or perhaps, they are expecting a legal way out to get the interim stay vacated through a larger Bench, since the order had come from a single-judge Bench. 

The judge had a problem with a Constitution that did not specify the names and borders of the proposed Provinces. He said that such a move would be in contravention of Articles 82 and 138 of the Interim Constitution. The Supreme Court passed the interim stay on a petition from two individuals (one of whom is, interestingly, a Madhesi) who argued that the issue of names and borders of the Provinces proposed must be decided by the Constituent Assembly before it is dissolved. In other words, the Constituent Assembly, whose task it is to frame the Constitution, should ensure that the names and borders of the Provinces are incorporated into the new Constitution. To take the matter further, it means that an expert committee’s recommendations on the formation of Provinces must, either fully or partially, become part of the Constitution which the Constituent Assembly agrees upon. 

Article 138 says, “The boundaries, number, names and structures, as well as full details of autonomous Provinces and the Centre and allocation of means, resources and powers shall be determined by the CA, while maintaining the sovereignty, unity and integrity of Nepal.” On the other hand, Article 82 of the Interim Constitution says the business of the Constituent Assembly ends on the day that the Constitution it agrees upon is passed. Simply put, once again, the Constituent Assembly cannot adopt a Constitution that does not have the names and the Provinces which are to be created as part of a federal structure.

This is a real legal deadlock for both the Government and the two Opposition parties. The fact that a Madhesi came forward to successfully challenge the 16-point agreement prima facie shows that there is disquiet even among the Madhesi community on the deal that one of its representative groups has agreed upon. 

The decision to form an expert panel to look into the formation of Provinces was in keeping with Article 138(2) of the Interim Constitution, which reads as follows: “There shall be constituted a high level commission to make suggestions on the restructuring of the State. The composition, function, duty, power and condition of service of such commission shall be as determined by the Government of Nepal.” But critics of the 16-point agreement point to another clause of the Article, which says, “The final settlement on the matters relating to the restructuring of the State and its form of federal governance system shall be as determined by the Constituent Assembly.” 

Moreover, Article 138(1)(a) stipulates, “Recognising the desire of the indigenous peoples and of the people of backward and other area including Madhesi people towards autonomous provinces, Nepal shall be a federal democratic republican state. Provinces shall be autonomous and vested with full authority. The boundaries, number, names and structures, as well as full details of the lists, of autonomous Provinces and the Centre and allocation of means, resources and powers shall be determined by the Constituent Assembly, while maintaining the sovereignty, unity and integrity of Nepal.”

Now, if the Constitution were to be adopted without the names and borders of the proposed Provinces, the Constituent Assembly would have possibly ‘done’ its job and ceased to exist, but without meeting the spirit of the provisions laid down. This is where the dispute rests. Interestingly, most of these provisions had been incorporated in the Interim Constitution following the 2006 Jana Andolan II against the usurpation of powers by King Gyanendra, and the Madhesi movement, both for a greater say for the community in mainstream politics and for an ethnic-based federal structure. 

The apex court’s stay has naturally angered the four political parties that were signatories to the 16-point agreement and had come to at least some understanding after nearly a decade of bickering. According to a report, the Constituent Assembly Speaker has appealed to the President to “advise” the judiciary to “respect” the jurisdiction of the executive. One does hope that the clash between the Government and the judiciary does not degenerate into something more serious, because the last thing Nepal needs at this moment, when it is dealing with contentious political issues and the challenges of reconstruction following the devastating earthquake of April 25, is a confrontation between politicians and judges.

However, there is something in the recent past to suggest that relations between the executive and the judiciary in Nepal have been tense. Only days ago, the Government was left red-faced when a two-judge Bench of Nepal’s apex court declared as illegal the Government’s appropriation of a property given by king Gyanendra to his daughter as part of her wedding gift. The Nepali Congress regime, actively backed by the Maoists, had confiscated all royal property, public and private following the end of the monarchy’s rule, and nationalised it. The court maintained that the Government could only nationalise the properties of king Birendra, queen Aishwarya and their children. 

While the verdict came as a shot in the arm for the marginalised ‘royalists’, though it amounted to nothing in terms of political gain, it exposed the over-zealousness of the Government and other political parties, flush with their victory over the Palace, to score populist points.

While many experts and the single-judge Bench of the Supreme Court may have legal arguments to justify the basis for the interim stay on the 16-point agreement, one cannot escape the political implications of the setback to the breakthrough. For one, the wait for a Constitution has got longer. Meanwhile, it remains to be seen for how long the present Constituent Assembly is going to survive.