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A Flawed Constitutional Design Led to a Political Crisis in Nepal. How Will it End?

by Post Basnet

Parliamentary systems achieve a balance between democratic accountability and political stability through two “doomsday devices” — dismissal power and dissolution power. But Nepal’s constitution fails to ensure such a balance.

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In an unexpected turn of events that has plunged the country into a constitutional crisis, Nepal’s prime minister KP Sharma Oli dissolved the country’s legislative body last week and announced fresh general elections for April and May next year – 18 months ahead of schedule. Nepal is a parliamentary democracy, but unlike most parliamentary systems around the world, Nepal’s constitution does not give executive heads the authority to dissolve parliament at will and announce early elections. At least that’s what a large section of the political class and press corp thinks. The controversial, some call it extraconstitutional, move by the prime minister has set off a new political crisis in a country that promulgated a new constitution in 2015 ending a decade-long political transition following an equally long Maoist civil war.

The crisis is a direct result of a months-long intra party rivalry in the ruling Communist Party with the senior party leaders plotting to topple the government and replace Oli. What actually precipitated the crisis was a flawed constitutional design that defied the logic of parliamentary democracy and is at risk of falling under the weight of its own contradictions. 

Nepal saw a bloody insurgency that claimed the lives of over 17,000 people before coming to an end in a negotiated settlement in 2006. Nepal’s intellectual class routinely argue that the dramatic success of the Maoist insurgency was largely due to the political instability and frequent change of government in the 1990s that pushed the disillusioned Nepali youths to the arms of the Maoists. This is a dubious claim given that Nepal has held only one early election in its entire parliamentary history beginning 1990 and frequent change of government should be unusual in a country that has recently transitioned to democracy. Nepal’s 2015 Constitution which was promulgated in 2015 after years of haggling, “corrected the error” by divesting the executive heads of their power to dissolve parliament. But, little did the constitutional drafters realize that such a change cannot lead to political stability, but may actually result in political dysfunction and harm democratic accountability and stability. 

Intra-party rivalry started right after Oli became prime minister when his party – the United Marxist and Leninist or the UML- won a parliamentary majority in the 2017 general elections in partnership with the Maoist Party. Former Prime Minister Pushpa Kamal Dahal, who led the Maoist insurgency and merged his party with Oli’s UML to form the Nepal Communist Party (NCP), demanded that Oli either resign from the party leadership or the government. Not only Dahal, several other leaders including two former prime ministers started plotting to oust Oli, each outmaneuvering the other to seize power.

Constitutionally mandated dissolution power is essential to maintain party discipline in parliament and stabilize the system. It empowers the executive head to issue credible threats to lawmakers and achieve policy goals. Without such power, the political survival of Oli increasingly depended on patronage distribution to keep his coalition intact. As his political enemies only got stronger, a paranoid Oli sought to outmaneuver them by taking what many consider an extraconstitutional move – dissolution of parliament. 

While Oli should be blamed for driving the country to this disaster, a flawed constitution along with continued squabbling among the ruling party leaders catalyzed this crisis. Firstly, dissolution power might have facilitated the balance of power between the parliament and executive and may have prevented this crisis. Secondly, even if Oli had dissolved the parliament, the sanctity of the constitution would not have been violated. A strategic early election, 18-months ahead of schedule, would not have been a disaster.     

Modern governance systems seek to strike a balance between democratic accountability and political stability. Parliamentary system seeks to achieve this balance through two “doomsday devices” — dismissal power and dissolution power. While a simple parliamentary majority can dismiss the prime minister at will, the prime minister also controls the parliament by threatening to exercise dissolution power, out of which emerges a balance of power and reciprocal trust. But this was not clearly a case in Nepal. Plotting to oust Oli became a favorite pastime of his party rivals including three former prime ministers who have developed their own patronage networks and are not likely to give up their political career.Without dissolution power, Oli did not have any mechanism to discipline the lawmakers other than patronage distribution and corruption. 

Historically, the dissolution power was a conservative check exercised by monarchs against the legislative powers. As the political power gradually shifted from the monarchs to the masses in Europe, states sought to curb this executive power, but the move contributed to political instability during the inter-war period. The French Third Republic, for example, sought to curtail this power by requiring the president to seek the Senate consent on the matter, which aggravated government ineffectiveness and political instability. The Fifth Republic restored this executive power. In fact, curtailing dissolution power can hardly solve the problem of early elections. Despite introducing the Fixed Terms Parliament Act in 2011, the United Kingdom held three elections and elected three different prime ministers in the span of five years since 2015. The country is now on the way to restoring the dissolution power.        

Coming back to Nepal, how will the current crisis end? There are two potential scenarios. Firstly, opposition parties may opt to directly confront the government by fomenting political unrest. The economic hardship caused by the pandemic and subsequent lockdowns can further fuel the unrest. Nepal’s neighbors, India and China — two geopolitical rivals-turned foes – have their own interests and may enter the scene as additional veto players, deepening the crisis further. Such a confrontational path may ultimately lead to the breakdown of Nepali democracy. In the best scene, the country may get a “consensus” or a bureaucratic government. But that will also seriously damage the constitution.        

The second option is to follow the decision of the Supreme Court. However, the Court is effectively at the mercy of parliament given that a fourth of MPs in the Lower House can initiate an impeachment motion against a judge thereby  immediately suspending the justice indefinitely. Therefore the justices have the incentives to let the parliament dissolve and save its skin. Behind the curtain, the main opposition Nepali Congress, which is likely to reap the windfall in the next election, may also pressurize the Court to uphold the decision.

The Court cannot simply justify a decision on the basis of what other countries do, as the President seems to have done by citing parliamentary practices in other countries in her decision to approve PM Oli’s recommendation, rather than what the country’s own constitution says or doesn’t say. If the Court upholds the government decision, that is likely to end the legitimacy of the constitution. In fact, the Court has only two options: either stand for the constitution or give Oli a free hand. 

Irrespective of the Court decision, Oli has inflicted serious damage on the constitution, and it may take years to restore faith in the document.  Secondly, if the Court overturns the government decision, the political system will still suffer from dysfunction, deadlock and corruption mainly because of the original sin committed by the Constituent Assembly. The longevity of the constitution will depend on a number of factors including two future amendments: restoration of dissolution power and guarantee of judicial independence.

A Request to Indian Media: Read Nepali News

Indian media continues to peddle misinformation about Nepal-India ties. @IndiaToday is the latest example.

India Today’s Rahul Kanwal should have googled the name Govinda Gautam before making a sweeping, ignorant and completely false statement.
India Today’s Rahul Kanwal should have googled the name Govinda Gautam before making a sweeping, ignorant and completely false statement.

India has produced some of the finest minds in the fields of science and technology, literature, and philosophy. Unfortunately, the same cannot be said about journalism in the world’s largest democracy. There have been countless criticism of Indian journalism by Indians themselves. Indian journalists peddling jingoism and misinformation while covering India’s relationship with Nepal has also been noted. This post details one more example of lazy Indian journalists making uninformed and outlandish claims without evidence and disseminating false information.

On 12 June, India Today broadcast a programme hosted by one of its marquee anchors and editors Rahul Kanwal. Kanwal did not come off as a moronic bully that Arnab Goswami was during a recent Republic TV debate on India-Nepal relationship. However, he failed in fulfilling a basic duty of journalism that requires one to do some research on the topic one is going to discuss. As a result, he ended up spreading unverified and, at one point, downright false information through his channel.

Continue reading “A Request to Indian Media: Read Nepali News”

Three Reasons Why India Sees a China Hand in Nepal’s New Map

Evidence shows Indian fear of China in Nepal is not a recent phenomenon.

Prime Minister Oli with Chinese President Xi Jinping in Kathmandu on 12 October 2019. Image: AFP

On 16 May 2020, Indian Army Chief Manoj Mukund Naravane blamed that Nepal raised the “issue at the behest of [China]”. Speaking at a webinar in New Delhi, Naravane said: “There is reason to believe that they [Nepal] might have raised this issue at the behest of someone else [China] and that is very much a possibility.” (Read this in the context of Nepal issuing an updated map including Kalapani.)

[On 2 June 2020, in response to a question from a populist news channel (“…could there be China’s hand behind Nepal’s sudden posturing?”), India’s Defence Minister Rajnath Singh said: “I do not want to blame anyone but there must be something somewhere.” Answering a follow-up question, Singh quickly corrected himself and said, “I do not want to doubt anyone at this time.”]

On 23 May, two days after Nepal published its map, a former Indian diplomat appeared on a populist Indian TV channel, Times Now, to discuss China’s presence in Nepal. Krishan Chander Singh said:

“…How to deal with China? …we counter them…. But when it is your core district, your core area [of influence] which is Nepal, [do not] invoke their name [but] get rid of [Prime Minister] Oli… We have enough assets there. There is Nepal [i] Congress, there are divisions [within the ruling Nepal Communist Party], we know all the actors…Get rid of [Chinese] puppet in the neighbourhood and get a [pro-India] government in Kathmandu…[Such a] snub to China [will] signal …all through your neighborhood that if you seek the protection of China, it can’t save you [and] it does not understand how democracies work. Your ambassador can run around from pillar to post, but if the Prime Minister becomes unpopular and his party cracks, that is the signal you send out. But we don’t blame China, why should we give them extra importance by saying ‘no no no please leave China’, make them leave China.”

India Nepal China - flags and tri-junction
Image Source NAR

Posting the television clip on his Twitter account, Singh who is India’s former ambassador to Iran and the United Arab Emirates asserted that Prime Minister “Oli is unpopular, faces corruption charges, tried subverting constitution by aborted ordinances. He’s baiting India by jingoism over border dispute to distract. Can Modi Gov encourage his opponents to oust him? Counter China by eliminating their asset.”

Continue reading “Three Reasons Why India Sees a China Hand in Nepal’s New Map”

A Brief History of Lipulek Deals: India and China Agree, Nepal Protests

The Indian projection of Nepal as a recipient of unflinching support from and an ardent ally of China is not just incorrect but also exposes India’s fear of China. This article shows Nepal has made it clear, whenever it could, to the Chinese that it does not agree with the Sino-Indian deals on Lipulek.
Nepal's new map shows Limpiyadhura, the source of Mahakali river that serves as border between Nepal and India, as tripoint between Nepal, India and China. Pic via SCMP.
Nepal’s new map shows Limpiyadhura, the source of Mahakali river that serves as border between Nepal and India, as tripoint between Nepal, India and China. Image: SCMP.

A closer look at the Lipulek issue shows that it was not Nepal that brought China in the picture, as many Indians including the Army Chief, former diplomats and politicians have alleged without evidence in recent weeks. The culprit, it turns out, is the Indian Government. India has signed several deals with China on Lipulek and Nepal has, of late, strenuously objected to those agreements.

Here is a list of key agreements on Lipulek that India and China have signed, and Nepal’s objections to (some of) them.

  • On 29 April 1954,

    India and China signed an “Agreement …on Trade and Intercourse with Tibet Region of China and India” in Beijing. The first sentence of Article 4 of the agreement states:

    “Traders and Pilgrims of both countries may travel by the following passes and route : (1) Shipki La pass, (2) Mana pass, (3) Niti pass, (4) Kungri Bingri pass, (5) Darma pass and (6) Lipu Lekh pass.”

We could not find any evidence of Nepal reacting to this Indo-China agreement. The 1950s was one of the most unstable periods in Nepal’s recent history. Political instability followed with the end of an oppressive Rana regime in 1951. India had become independent seven years earlier and enjoyed “close to total political and economic domination” in Nepal. Likewise, it was also the time when Indo-China relations were at their best as reflected in the Hindi slogan Hindi Chini Bhai Bhai (Indian Chinese Brothers). The agreement probably was a part of the Chinese ‘thank you’ to India for being the first non-communist country to recognize the Maoist takeover of Beijing in 1950.

Continue reading “A Brief History of Lipulek Deals: India and China Agree, Nepal Protests”

The Map of Nepal: Events that led the Himalayan Republic to challenge Indian occupation of Kalapani (Part 1)

New political and administrative map of Nepal, officially released on Wednesday 20 May 2020 shows Limpiyadhura, Kuti, Nabi, Gunji, Kalapani and Lipulek Pass regions.
The Nepali tip: Political and administrative map of Nepal, officially released on Monday 18 May 2020 shows Limpiyadhura, Kuti, Nabi, Gunji, Kalapani and Lipulek Pass regions.

In this first article of a three-part series, recent actions, decisions and reactions of the governments of India and Nepal that compelled the Himalayan republic to take the startling step of cartographic assertion are laid out in chronological order. The second part examines the so-called China Card through a series of decisions/agreements and responses of all three countries while also demonstrating how Indian responses are shaped by their perceived threat of China. The last part analyses the diminishing influence of Indian in Nepal and probes into the possible reasons behind Nepal’s audacious response to what it considers Indian encroachment of its territory.

Tired of waiting for India to reach a negotiated settlement of a decades-long border dispute, and sick of getting ignored and bullied by its southern neighbour time and again, Nepal on Wednesday, 20th May 2020, released an updated map showing all of its political and administrative units. The map incorporates the 335 sq. kms. triangular region comprising the India-occupied Limpiyadhura, Kuti, Nabi, Gunji, Lipulek Pass and Kalapani areas that, like the rest of the country, is sandwiched between China on the north and India on the south.

This startling action is in stark contrast to Nepal’s behaviour in the past, dating back to the late 19th century and particularly the last 70 years. During much of that period Nepal either ignored or feebly reminded India of the latter’s continued encroachment and occupation of the area. Nepali rulers have been hesitant, even retiring at times, when it came to articulating and presenting the country’s stand on the Kalapani issue. This was mainly to safeguard their power in Kathmandu as challenging India, Nepali rulers thought, somehow threatened their regime. This was particularly true for king Mahendra who is said to have ignored the issue despite knowing about illegal Indian presence within Nepali territories. This time around a government enjoying parliamentary supermajority on the one hand but facing an internal party revolt and public criticism for its lamentable Covid-19 response on the other, opted to confront India head on solidifying its base. (More about this in the next part.)

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In June 1997 Deputy Prime Minister Bam Dev Gautam raised the issue of Kalapani encroachment with the visiting Indian Prime Minister IK Gujral and making it a bilateral issue between two countries. Since then Nepal has been hoping that an incredibly slow-paced and almost ineffective diplomacy would persuade India to stop occupying Nepali land. Instead, India not only continued to occupy the land but started to publicly taunt Nepal by issuing a political map including the contested area followed by displays of road-building activity in the region.

Here’s a chronology of key events of the past 7 months that culminated in Nepal confronting India with a new map.

Continue reading “The Map of Nepal: Events that led the Himalayan Republic to challenge Indian occupation of Kalapani (Part 1)”

How Kathmandu Elites Capture Nepal’s Progressive and Political Agenda

By Ashesh
UWB Guest Blog

The elite group of Nepal includes people from different ethnic groups and various places. The richest people in Nepal are still from Madhesi, Newar, Thakali and Thakuri groups, apart from Bahun-Chhetri. Likewise , based on access to land, government services and education, elites of different ethnic groups are far ahead of an average Nepali person.

Some handful elite families from various ethnic groups and castes were privileged to study in high quality English-medium schools and renowned educational institutions abroad. They benefited the most from the Rana and Panchayat regimes and continued to do so in democratic times. Today, they are the most influential class in Kathmandu with deep political and financial interests. In the past couple of decades, they have coined a jargon “hill upper caste ruling elites” to pose as advocate for marginalized people as they saw movements targeted against them.

The “progressive elites” have become successful in creating an illusion among foreigners that these poor and rural folks are the ‘demonic ruling elites’ of Nepal and they, the real elites who benefited the most from the Nepali state since centuries, are the agents of change and progress.

Read: Madhesi Groups Have the Highest Representation in Government Jobs

This coinage has successfully helped them shield themselves from the rights-based movements by creating a “new” enemy.  In their narrative, the oppressors are the ‘hill upper caste ruling elites’ while oppressed are the marginalized ethnic, regional communities. And they ‘courageously’ side with the marginalized ones to attack the ‘hill upper caste ruling elites’, euphemism for the poor and rural Bahuns and Chhetris.

This is a letter to all these Kathmandu elites to remind them who they are and that there are many out there who don’t believe the narrative that they have been selling.

Dear Kathmandu elites,

  • Given that you and your families are part of feudal ruling elite class, you may think all Bahun-Chhetri enjoyed similar privilege. But hard facts like HDI figures and other research show there are many poor Bahun-Chhetri people. People of diverse communities have enjoyed more access and privilege from the Nepali state.

Continue reading “How Kathmandu Elites Capture Nepal’s Progressive and Political Agenda”

Did India deceive or did Madhesi Morcha misunderstand?

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Five Madhesi Morcha Leaders with Bihar (India) politician Lalu Yadav at his residence (Picture: Kantipur)

While talking for about an hour in Anamnagar, the leader’s two mobile phones rang continuously. He mostly ignored the calls, but when he did pick any one up, he would answer with exasperation, “Please wait a few days. We will sit and take a joint decision.”

The end of Srawan (mid-August) is the deadline for renewing government licenses, factory registrations and the like. By that time, the Morcha had already started its protests against the constitution-writing and federal demarcation. The Government offices in the Madhes plains were closed, making it impossible to renew any document. The cadre and supporters have been pestering the harried leaders to get the Government to cancel the fines slapped in the intervening six months.

Continue reading “Did India deceive or did Madhesi Morcha misunderstand?”