There are various theories being advanced about why Prime Minister Baburam Bhattarai should stay put. The most popular among them is that his resignation could push the country into another prolonged period of uncertainty, as happened in 2009 during the prime ministership of Madhav Kumar Nepal. Nepal remained in office seven long months after his resignation as the legislature-parliament failed to agree on his replacement. If PM Bhattarai resigns now, goes the argument, another such period of uncertainty could follow, not the least because the opposition parties have failed to settle on Bhattarai’s replacement. But this argument ignores the crucial fact that while Nepal’s replacement could not be chosen for a long time, the very fact that a parliament was in place made his departure only a matter of time.
But now the country is without a parliament, and the only legitimate way the current caretaker government can go is if the prime minister voluntarily relinquishes his position and asks the President to call for a new consensus prime minister candidate from among the political parties. Given the glacial progress in the political process in the five months since the dissolution of the CA, and a deeply polarized polity, this also seems to be the only surefire way to end the impasse.
The Maoist stand on continuing with the current government is more tactical than ideological. This is clear from the condition they have put for government change. PM Bhattarai will step down, we are told, if the opposition parties agree on promulgation of new constitution through revived CA, but not if the country is to go for fresh CA polls. In other words, the Maoists will not make way in the event of fresh polls since they will not be able to influence election results as effectively as they can from the head of the government.
True, it could as strongly be argued that the reason Nepali Congress and CPN-UML have been so adamant on government change before any meaningful negotiations can begin is that they also want to be in a position from which they can sway election results if the country decides on that route. Moreover, they are worried that if they don’t get a chance to juice up their grassroots and old patronage networks from the government, they are unlikely to improve on their dismal showing in the 2008 CA polls.
The real cause of disagreement between the ruling and opposition parties, then, are not contentious constitutional issues like federalism and government form, but political calculations surrounding new polls.
These calculations of partisan benefits aside, the parties can’t afford to lose sight of the larger question which risks their very legitimacy: How can the current constitutional and political crisis be brought to an end in the most legitimate manner? Again, the only surefire is for the current government to make way for a new consensus government.
There is another attendant risk of the absence of a parliament, a risk which will get bigger the longer the Bhattarai government continues in office. The government could assume a totalitarian character as vital constitutional bodies to maintain checks and balances are slowly being rendered obsolete. Soon, Supreme Court will be operating at half its strength; the top anti-graft body is already without any office bearers; important ambassadorial positions are vacant; the Election Commission will soon be headless. It is hard to imagine a functioning democracy without the functioning of these vital organs.
This is the reason the course proposed by a group of former Supreme Court chief justices appears just about perfect. The ex-justices would like to see the parliamentary half of the dissolved CA reinstated for necessary constitutional amendments to clear the path for new CA polls. Such a parliament will also be able to fulfill vacant constitutional bodies, reviving the democratic process ahead of the all-important new CA polls.
Crucially, the suggestion offered by the former chief justices to PM Bhattarai can be interpreted as more or less reflecting the wishes of the current judiciary, which means that if the parties decide to reinstate the parliamentary half of the dissolved CA, the judiciary would not oppose the move. But the ex-justices also made it clear that any constitution-making function of the reinstated body would be unacceptable, as the old CA clearly failed in its mandate to give the country a constitution within the scheduled time. Perhaps advised by the same set of legal experts, President Yadav has also started speaking openly in favor of new CA polls.
The new proposal could offer a win-win solution for all the sides. But even so, the Maoists will still first have to agree to step aside. If that happens and there is disagreement on Bhattarai’s successor, a non-political person agreeable to all major political forces can head the election government.
Last five months have shown that the political and constitutional process cannot move ahead without major concessions from all important stakeholders. For instance, if the Maoists agree to relinquish government leadership, NC and UML might consider Maoist position on government form. Madhesi parties have already indicated their flexibility on single-identity province. NC and UML could be more accommodative on their inclusion and identity demands. But this tough bargaining will have to take place soon, preferably before the mid-November budget deadline.
If there is no agreement by then, Bhattarai should still be able to push through some kind of a budget through ordinance. Given President Ram Baran Yadav’s recent reluctance to interfere on political issues, if pushed on the budget, he is likely to take the less controversial option of siding with the government. But any such move is sure to increase the already dangerous level of polarization between the governing and opposition forces.
A situation where no side can afford to back down without losing face has to be avoided at all costs. This applies as much to the political forces as it does to the judiciary. If the judiciary really wanted to pick a fight, it could have argued against parliamentary reinstatement through its proxies, given that the legislature-parliament was envisioned only as a ‘shadow’ of the constitution. But now that the judiciary has offered a well-weighed middle option way out of the current crisis, it is up to the parties to reciprocate the gesture by playing a responsible part.