Dr. Baburam Bhattarai Stays On-Part XXIII

Siddhi B Ranjitkar

Head of State President Dr. Ram Baran Yadav had said that an election to a new Constituent Assembly (CA) could not be held without a national political consensus means putting an end to the election, as a national political consensus was next to impossible. One of the questions was whether the ceremonial Head of State had such rights to say, the next question was where the Head of State was leading the country to, and the third question was whether the Head of State was about to take over the state power, and finally whether the Head of State wanted to be a twenty-first-century dictator or simply he wanted to turn over the power to one of his former colleagues of NC provoking an unconstitutional confrontation. A new CA was to complete the crafting of a new constitution that has been left unfinished by the previous CA dissolved on May 27, 2012.

On Friday, August 17, 2012, Head of State President Dr. Ram Baran Yadav refused to issue the election-related two ordinances stating these ordinances were irrelevant, as the Election Commission had already announced that the election to a new CA scheduled for November 22, 2012 could not be held due to the lack of a political consensus on it. The election-related laws remained not amended.

In an official statement issued on August 17, 2012, the office of the Head of State stated that the Head of State refused to issue the two-election-related ordinances recommended by the prime minister on July 27, 2012 because the Head of State believed that the ordinances were irrelevant, as the Election Commission had already notified the government that the election to a new CA was impossible to hold on November 22, 2012 in absence of the political consensus and the election laws amended, yet (Source: nepalnews.com)

While rejecting the ordinances, the president invoked Article 88 (1) of the Interim Constitution of Nepal of 2007. The Article 88 (1) if at any time, except when the session or meeting of the Legislature-Parliament is not in recess, the President is satisfied that it is necessary to take immediate action, the President may, on the recommendation of the Council of Ministers, promulgate any Ordinance as required without prejudice to the provisions set forth in the Interim Constitution. (Source: myrepublica.com)

The Election Commission needed certain time to prepare for the election; so, it could not hold the election on November 22, 2012 but the election should be held at any time in the future. Nepal had no alternative to the election if it were to break the current political deadlock. So, Head of State President Yadav needed to cooperate with the current government on holding the election to a new CA at any time feasible in the future. However, he had first blocked the election-related two ordinances obviously blocking the election to a new CA in the future. Then, he came out openly that the election could not be held without a national political consensus. Everybody knew that a political consensus was not possible as long as the opposition coalition of NC and CPN-UML did not back track from its stand on not accepting the identity-based federalism, and the ruling coalition of UCPN-Maoist and UDMF also did not step back from its stand on for the identity-based federalism. Currently, none of the coalitions was in a mood to relent their stand.

The opposition coalition of NC and CPN-UML had been deadly against the election to a new CA, and opted to grab the power by any means. The opposition leaders stated that the declaration of the election to a new CA was unconstitutional. So, the opposition guys had declared that they would boycott the election. They believed and feared that they could not compete the ruling coalition of UCPN-Maoist and UDMF in the election. So, the only option left to them was to force the current prime minister out of the office by any means possible. They had pushed Head of State President Yadav hard to fire the prime minister but the Head of State stood the pressure so far stating he was not going to cross over the constitutional boundary. The recent events showed that the Head of State was clearly joining the opposition coalition of NC and CPN-UML refusing to issue the election-related ordinances and publicly stating that the election to a new CA was not possible without a national political consensus.

Two days after rejecting election-related ordinances, Nepal President Ram Baran Yadav on Sunday, August 19, 2012 said that the caretaker government headed by Prime Minister Baburam Bhattarai could not hold an election to a CA without building a national consensus. The "present government formed on majority basis cannot conduct the Constituent Assembly (CA) election,” said President Yadav speaking at a function in the outskirts of Kathmandu. "The CA election could be conducted only on national consensus," he said. "The government can only conduct regular Parliamentary Election. CA election is possible only on the basis of consensus," the President pointed out. Hinting at the reaction of the UCPN-Maoist to the refusal of endorsing the ordinance, President Yadav said, "The government only has to look after the rules and laws, I have to consider the Constitution as well." (Source: zeenews.india.com/news)

In a statement issued in Kathmandu on August 20, 2012, Vice-chairman of CPN-UML Bamdev Gautam urged the government and the ruling parties not to spread any propaganda that would tarnish the image of the president stating the president’s decision on rejecting the election-related ordinances as "quite a natural move". "CPN-UML appeals all the concerned parties not to indulge themselves in a propaganda guided by their partisan interests with the intention to tarnish the image of the respected institution of first-elected president," said Gautam in the statement. Gautam said the government’s move to submit the ordinances to the Head of State was unconstitutional because the government proposed to amend the laws without first amending the related provisions of the Interim Constitution; so, the president rightly rejected the government’s unilateral move. "The government’s move to submit the ordinances before president for endorsement in contravention with provisions of constitution even as the Election Commission had already said that fresh elections were not possible without first amending related-provisions of the constitution is against the supremacy of the constitution and rule of law," Gautam said in the statement. (Source: myrepublica.com)

If anybody were to take a look at the Interim Constitution of Nepal of 2007, s/he would find that the Head of State was a ceremonial and had to follow the prime minister’s recommendations for anything to do concerning the state affairs. He was a politically neutral person, and he could not take the side of the ruling parties or the opposition parties. So, he quit his party: NC after he was elected to the office of the Head of State in 2008.

First, he breached the constitution refusing to follow the recommendations of the prime minister for issuing the election-related ordinances, and he denied the possibility of holding the election to a new CA. Then, he publicly said that the election to a new CA was not possible without a national political consensus. Clearly, he had boosted morale of the opposition coalition of NC and CPN-UML that had been against the election and that had been for grabbing the power anyhow.

Taking the side of the opposition coalition of NC and CPN-UML, the president had clearly indicated that the ceremonial president wanted to be an active one. In fact, he had been already active, as he had already done two unconstitutional things: one was the rejection of two-election-related ordinances, and the second was publicly speaking against the election to a new CA that had directly adversely affected the elections. Then, the question was where the president wanted to lead the country to, going against the election and breaching the constitution. Judging from his recent activities, he wanted to lead the country to the direct unconstitutional confrontation rather than leading them to the constitutional confrontation means the election to a new CA.

Speaking at an interaction event held in Kathmandu on August 19, 2012, Co-chairman of Sadbhawana Party Laxmanlal Karna said that the President had no authority to reject ordinances. He said that rejecting two ordinances, President Ram Baran Yadav started off following former king Gyanendra’s path (means he was going to take over the power). He said that the government would resend the two ordinances back to the President and if the Head of the State rejected them again, the UCPN-Maoist and United Democratic Madhesi Front would hold protests against the President. (Source: thehimalayantimes.com)

The direct unconstitutional confrontation was to fire the current government and appoint one of the leaders of the NC to the office of prime minister. In this case, firstly, the ruling coalition of UCPN-Maoist and UDMF would not accept the firing of the duly elected prime minister by the ceremonial president. The ruling leaders would say that only the elected legislature had the right to elect and fire a prime minister; so, firing of the current prime minister by the Head of State would be unconstitutional; and the prime minister would not quit the office as the order of the Head of State had breached the constitution. Secondly, if the Head of State were to force the prime minister out of office, the ruling coalition would run a parallel government; the ruling coalition had declared it. So, the ruing coalition and the opposition coalition including the Head of State would directly unconstitutionally confront with each other. In such a case, only the people might decide the winner.

Such an unhealthy and unconstitutional confrontation was what exactly the leaders of the opposition coalition of NC and CPN-UML had been seeking for. They believed that that was the only way of taking back the power lost to the ruling coalition of UCPN-Maoist and UDMF. Then, the Head of State joining the opposition coalition, such an unconstitutional confrontation had been more real than never before. Surely, the consequences of such unconstitutional confrontation were difficult to predict but might cause tremendous sufferings to the innocent Nepalis whose lives might be disrupted by violence and counter violence if it were to turn into violent. The Head of State and the opposition coalition should be held accountable for such consequences, if they were not to steer the country to the smooth political transformation holding the election to a new CA.

UCPN-Maoist has said that the President's refusal to endorse the two election-related ordinances would lead the country to confrontation. The party also warned of mobilizing the people against the wrong steps taken by the president.  Spokesman for UCPN-Maoist Agni Sapkota said that the party would hold mass meetings and rallies to inform people about the President's erroneous steps as the Interim Constitution had not granted him any rights to reject ordinances forwarded by the Council of Ministers. (Source: zeenews.india.com/news)

Speaking briefly to the media persons at Biratnagar Airport on Tuesday, August 21, 2012, Minister for Finance Barshaman Pun warned that Nepalis would take the issue to the streets if the President were to cross the constitutional limit; and he accused the President of breaching the constitution by sending back the two-election-related ordinances the government recommended him to approve. (Source: thehimalayantimes.com)

Some of the leaders of CPN-UML had been even asking the NC leaders to name the next prime minister but the NC leaders had been resisting it for various reasons including the reason for having a number of claimants for the office of prime minister. The NC had three contenders for the office of prime minister. They were President of NC Sushil Koirala, Senior Leader Sher Bahadur Deuba, and Former Parliamentary Leader Ram Chandra Poudel. Since the CA-cum-parliament was dissolved on May 27, 2012, claim of Poudel for the office of prime minister had been significantly faded away, as his claim stood on the NC statute that stated the parliamentary party leader would be automatically prime minister. Then, Deuba was strong enough to stake his claim for the office of prime minister, as he had held the office of prime minister several times in the past, and he was the strong leader of his faction of the NC. So, Koirala needed to garner the support of NC leaders for his claim for the office of prime minister. That was why Koirala was so shy to name the candidate for a next prime minister. One of the CPN-UML leaders had even labeled the NC leaders impotent for announcing a next prime minister, and he claimed the opportunity of forming a new government for his party.

While speaking at a press conference held in Rautahat’s Chandranigahapur on August 19, 2012, Chairman of UCPN-Maoist Pushpa Kamal Dahal (Prachanda) alleged that President Ram Baran Yadav would impose an autocratic rule if the Bhattarai-led government were to quit without building a political consensus. “The President will be active and impose an autocratic rule in the country if the incumbent government leaves the office without consensus among the parties,” said Dahal (Prachanda). “If the Prime Minister Bhattarai resigns at present political dilemma, country will revert to the period of 1950 to 1958,” he said. He also offered three alternatives: election to a new CA, revival of the dissolved CA, or an election to a parliament to end the current political uncertainty; Dahal (Prachanda) urged the parties to mull over these options and find out the best one for the people and the nation. (Source: thehimalayantimes.com)

Speaking at an interaction held by Revolutionary Journalists Association in Chandranigahapur of Rautahat district on Sunday, August 19, 2012, Chairman of UCPN-Maoist Pushpa Kamal Dahal (Prachanda) said that President Dr Ram Baran Yadav's refusal to approve two ordinances related to election forwarded by the government was inappropriate move, and the practice of turning down the ordinances was not good sign, as it would have negative consequences. He also ruled out any possibility of Prime Minister Baburam Bhattarai resigning from the post saying that his resignation would provide opportunity to the President to hold power. "If PM Bhattarai resigns, the President can appoint PM based on his own preference and the governments can be unstable, " he added. (Source: nepalnews.com)

Joining the opposition of NC and CPN-UML, the Head of State wanted to be a twenty-first-century dictator. Nobody knew what was the ambition of the son of a farmer turned into an elected Head of State due to the highly fluid political situation at the time when he was elected to the office of Head of State in 2008. However, he had been showing the indication of trying to be a dictator not following the recommendations of the prime minister for the two election-related ordinances and his advisor telling the media people that the Head of State was not for accepting to do whatever the prime minister recommended him to do. The advisor to the prime minister told in public that the Head of State had breached the constitution not following the recommendations of the prime minister, and the government would resend the ordinances to the Head of State.

Press advisor Rajendra Dahal to the Head of State stated that the rejection of the two-election-related ordinances by the Head of State should be understood in a broader way, as the Head of State would not simply rubber-stamp each and every ordinances recommended by the government but the Head of State would reject any ordinances that would lack the political consensus. (Source: myrepublica.com)

Speaking at an event held in Kathmandu on August 18, 2012, political adviser Devendra Paudel to the Prime Minister said that the government was preparing to send the rejected ordinances back to the President. “We will again send the ordinances to President Yadav as per the international law. The President has no option but to give them his nod,” said Paudel. Paudel said, “The ordinances were sent as per the suggestion of the Election Commission as it had said an election date could be announced only after laws to organize elections were in place. How can we make the legislation and hold the election when the President has rejected the ordinance?” He said the country only has two alternatives: building national consensus or bringing ordinances to hold the elections. “The chances of parties being able to forge a national consensus is very slim,” he added. (Source: thehimalayantimes.com)

Meanwhile, speaking at a program held in Kathmandu on Sunday, August 19, 2012, President Yadav hinted at he would not remain silent if the political crisis were to prolong in the country. He said that he might move forward by consulting with the Supreme Court formally or informally to end the crisis facing the nation. (Source: nepalnews.com)

As usual the legal practitioners showed their partisan support rather than being practical unbiased professionals. For example, speaking at a face-to-face program held by the Reporters’ Club Nepal in Kathmandu on Sunday, August 19, 2012, lawyers and constitutional experts close to the opposition parties said that the rejection of two-election-related ordinances by the President was correct; as the patron of the Constitution, the President had upheld the constitutional rights whereas legal and constitutional experts close to the ruling parties said that the President had crossed the constitutional limits by issuing statements and meeting foreign delegates unilaterally, and argued that he did not have the rights to return back the ordinances recommended to him. They argued that the executive powers vested on the Council of Ministers, and returning back the ordinances means the President had exercised executive powers, which in fact, was unconstitutional. Source: thehimalayantimes.com)

One thing the Head of State needed to do was to flip the pages of the recent history of dictators. For example, the then King Gyanendra Shah became a dictator in February 2005. His dictatorial regime lasted for 13 months. He provoked the Nepalis not only to remove him but also to destroy the dynastic Shah monarchy and declare Nepal a democratic federal republic. Even more recently, the Libyan dictator Gaddafi and the Egyptian dictator Hosni Mubarack: both of them long-time dictators of their respective country had been forcibly removed not only from the respective office but also Gaddafi got killed by rebels and Mubarack was serving the jail term. These are the fate of the twenty-first–century dictators.

If Head of State President Dr. Ram Baran Yadav were to venture to be a twenty-first-century dictator, it would be quixotic venture, as the opposition coalition of NC and CPN-UML and some other leaders of minor political parties wanted him to be; nobody would able to stop him from being so but he would be able to stay on in power not more than 40 days as opposed to 40 years Gaddafi had stayed on. He would strengthen the federalists, as did Gyanendra Shah to the republicans. Certainly, then, federalists would emerge as a strong political force and institutionalize the federalism with identity-based federal provinces to the disappointment of the opposition coalition of NC and CPN-UML. Then, Dr Ram Baran Yadav might go back to raise his water buffalos or would find himself hanged on a public tree depending upon how much his dictatorship would be instrumental in taking the lives of innocent Nepalis.

If Head of State Yadav were to just appoint one of his former colleagues or even his former boss to the office of prime minister then it would not only provoke the wrath of the people for breaching the constitution but also might provoke the strong protest by the coalition of UCPN-Maoist and UDMF against such breach of the constitution. Recently, the UCPN-Maoist and UDMF along with other like-minded political parties formed a Federal Democratic Republican Alliance (FDRA): a boarder coalition that would fight for federalism with identity-based federal provinces clearly to counter the opposition of federalism by the coalition of NC and CPN-UML, and to fight against any unconstitutional moves of the Head of State.

Speaking to reporters in Lahan on August 18, 2012, Chairman of UCPN-Maoist Pushpa Kamal Dahal (Prachanda) has said that political confrontation in the country in the days to come will be between alliances, as he has failed to build a consensus among the political parties despite continuous efforts made on it; no option left except for forming an alliance of progressive forces and fight against status quo. He claimed that by forming a 21-party alliance, he has shown the way to the NC and CPN-UML as well for forming a new alliance. "Whether it is a fight or a deal it will now be between alliances," Dahal (Prachanda) told reporters in Lahan, "Neither is there a possibility of any agreement nor will the struggle be decisive if we take any move based on individual political parties alone." He has said that if the parties fail to agree on fresh elections, they have to settle the issues concerning the writing of a new constitution in dispute and that can be done on the basis of the stances taken by alliances. Dahal (Prachanda) has claimed that the current caretaker government will last not just 20 or 30 more years but forever. "There is no chance of allowing the NC to lead the government at a time when the country is in crisis because NC President Sushil Koirala is mainly responsible for the dissolution of the Constituent Assembly and for the failure to write the constitution and conclude the peace process," said Chairman Prachanda. He also has stated that a large number of leaders of the NC and CPN-UML are conservative that have been creating hindrances in transforming the country into a federal system and implementing other forward-looking agenda. He also accused Koirala of holding secret meetings with Mohan Vaidhya and being actively involved in splitting UCPN-Maoist vertically into two parties. "If he can conspire to divide our party why can’t I take the initiative to forge an alliance with the pro-federalists in the NC party?" (myrepublica.com)

The best path for Head of State President Dr Ram Baran Yadav to follow would be the constitutional path, and to take all political parties to the election to a new CA issuing the election-related ordinances rather than stating holding elections was the business of the Election Commission not that of the government. Then only, the first elected Head of State could make a history of his own institutionalizing the achievements made by the people’s movement otherwise the Head of State would lead the people to another more fierce movement than any other previous ones. He should beware of it.

August 24, 2012