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.

Published by UWB

Pioneering blog from Nepal...since 2004.