Nepal is in a constitutional crisis with major organs of the state confronting each other. Chief Justice Cholendra Shumsher Rana is under undeclared house arrest. Prime Minister Sher Bahadur Deuba, who is backed by the chiefs of four major coalition partners, is at loggerheads with President Bidhya Devi Bhandari. The President, on her part, is giving sleepless nights to the politicians about her next move — which includes the possibility of her seeking to rule as an extra-constitutional authority beyond the sanction and imagination of the Constitution that completed six years last week.
The current crisis began after President Bhandari refused to ratify Nepal’s citizenship bill, which was sent to her twice after it was passed by both Houses of Parliament over the span of a month. The bill seeks to give citizenship by birth and by descent to an estimated 500,000 individuals, and non-voting citizenship to non-resident Nepalis living in non-SAARC countries.
After President Bhandari returned the bill with about a dozen queries, Parliament sent it back “as it was”. Apparently insulted, she held a series of consultations with both protagonists and antagonists of the bill, including retired officers of the Nepal army and police, lawyers, journalists, and civil society representatives, but ultimately did nothing as the Tuesday midnight deadline for her to ratify the bill passed.
There are fears that the impasse might lead to a collapse of Nepal’s constitutional system. The public opinion on the bill is divided, and there are questions about its timing — with elections already announced on November 20. There are also questions about the government’s intention in bringing the bill without wider consultations, and looking into why two earlier attempts at settling the citizenship issue — in 1991 and 2006 — did not succeed.
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Deuba’s fifth term as PM in less than three decades of unstable government began in July 2021 after a Constitution Bench of the Supreme Court led by Chief Justice Rana struck down President Bhandari’s decision to prematurely dissolve Parliament for the second time in less than six months on the recommendation of the K P Oli-led government without exploring the formation of an alternative government.
The court ruled that the President’s decision to reject the demand of the majority of MPs to appoint Deuba PM and to ask Oli to lead the interim government was unconstitutional, and issued a writ of mandamus — unprecedented in Nepal’s legal history — giving her 24 hours to administer the oath of office to Deuba, the president of the Nepali Congress. She swallowed her pride then, but the mutual hostility between the President and the government has been obvious.
Oli, who heads the main opposition Communist Party of Nepal-Unified Marxist Leninist, calls Deuba “paramadesi (a beneficiary of mandamus) PM”. Chief Justice Rana has made it clear that he respects the prerogative of the PM to dissolve the House and call mid-term elections, but he did not want to be the dissenter in the ‘consensus’ verdict on the issue. Rana’s reservations on the court’s July 2021 verdict despite being a party to it, sent the message that his political sympathies lay with Oli.
President Bhandari has been a senior UML functionary and an Oli loyalist, and has refused to conceal her partisan support for him. Senior parliamentarian Dina Upadhyay has confirmed that after Nepal’s Parliament moved to impeach Rana earlier this year, she had met the Chief Justice on behalf of Deuba and Prachanda to convey that the notice would be withdrawn if he resigned and paved the way for his junior Deepak Karki to take over.
Rana refused, but the incident confirmed that his continuation in the post was a thorn in the flesh of the ruling coalition. The impeachment motion against him was registered in early March and, according to most constitutional experts, became infructuous after the tenure of the current Parliament came to an end on Tuesday. Rana who has been under suspension for the past six months after the motion was registered, now wants to resume as CJ — but the ruling coalition has suggested that it would like him to either resign or retire upon reaching the specified age on December 13 this year. Rana’s security has already been withdrawn.
There is a near unanimity among independent legal experts that there is no provision to carry forward the impeachment motion to the next House — and that Rana is CJ unless he resigns on moral grounds. But Deuba and the ruling coalition disagree, and the UML has been tactically silent. Any endorsement of Rana by international juristic bodies may embarrass the regime that has time and again claimed that it stands for judicial independence.
Republic of turmoil
The day after the citizenship bill lapsed, four top leaders of the ruling coalition met at the residence of the Prime Minister and issued a statement saying the President’s (in)action was unconstitutional, that it deprived lakhs of people of their constitutional right to citizenship, and that Bhandari had undermined the supremacy of the constitution and the sovereignty of the people.
They called on all political parties, civil society, the media and people to keep an eye on the President’s actions. Youths and students belonging to the ruling coalition issued a similar call the following day.
Vice President Nanda Kishore Pun, who had been one of the six deputy commanders of the Maoist guerrillas under Dahal during the 1996-2006 insurgency, criticised Bhandari: “It is unfortunate that the first defender and custodian of the constitution has violated it.”
But Mahesh Basnet, a prominent leader of the UML, took out a rally in defence of the presidential act on Wednesday.
The visible malfunctioning of Nepal’s constitution underlines the failure of the revolutionaries and the country’s other leaders to manage the radical changes of 2006. The denial of space to traditional forces, including the monarchy, in the new power structure was not pragmatic — as a result, the processes of identifying and punishing the guilty of human rights violations during the conflict remain incomplete. The parties that were together against the monarchy in 2006 have now fallen out.
This is also not the first time that a President has been accused of undermining the constitution. Ram Baran Yadav, the first President after Nepal became a republic in May 2008, had reinstated Rookmangud Katwal as Army chief within 24 hours of his being sacked by then PM Prachanda.
Dealing with the President
Impeachment is the only way in which an errant President can be punished. The death of the House, however, has given a protective shield to Bhandari.
The ruling coalition has been weighing the option of going to the court, even though the credibility of the judiciary is at its lowest ebb currently. Notifying the bill approved by Parliament in the gazette even without the President’s seal is an option — however, a government treating the President as persona non grata may be interpreted as the end of the republic.
Both sides are waiting and watching: if law and order deteriorates, whose side will the Army take — the executive’s, or that of its supreme commander, the President? How will the state function in the current deadlock and breakdown of the constitution, two months before the elections?
These questions may sound hypothetical, but they point to a very grim situation in Nepal.