Nepalese Prime Minister Calling First Session of New CA

Some of the Nepalese politicians have been abusing the people’s mandate, others have been challenging them but none of them have been for following the rule of law. Nepalese politicians thought that they could do anything while in power. They have inherited this mindset of the Rana dynastic prime ministers. For example, immediately after the voters placed the CPN-UML in the second position, its leaders have started off demanding power sharing with the NC talking the need for electing a new president and a new vice-president. Then, leaders of each political parties have the problems of making the lists of nominees for the proportional representation in the newly elected CA. Finally, they have the controversy of whether the president or the prime minister should call the first session of the newly elected Constituent Assembly (CA). None of the political leaders, and their followers bothered to think whether they are legal or constitutional, and other professionals also did not to care of following the rule of law but spoke on the party line. They would not waste so much of time and energy on those matters if they were to follow the rule of law.

CPN-UML leaders have been demanding the election to a new president and vice-president. The local media have reported that Chairman of CPN-UML Jhalanath Khanal and senior leader of CPN-UML Madhav Kumar made a pact on making Jhalanath Khanal the president of Nepal on condition that Madhav Nepal would chair the party. They did not care about what the Interim Constitution of Nepal of 2007 has made the provision for the president of Nepal. They thought that they could do anything no matter what the constitution said.

In fact, politicians had mutilated the Interim Constitution of Nepal of 2007 beyond recognition. Following the decision of the four-party mechanism, one Prime Minister after another made the recommendations, and the president issued the ordinances to suit the needs of the political parties. In absence of the legislature, political leaders have made the Interim Constitution of Nepal of 2007 a scrap of paper. To make the sitting Chief Justice of Nepal a chairman of interim election council of ministers, Prime Minster Dr Baburam Bhattarai made recommendations for suspending more than 20 Articles of the constitution, and for suspending many more laws. The president happily issued the ordinances making the Chief Justice of Nepal possible to be the prime minister.

Prime Minister Dr Bhattarai did not resigned from the office but the president sworn in the Chief Justice as the chairman of interim council of ministers. The president, the prime minister and the chief justice did not think the need for following the rule of law. Neither the president had fired the prime minister nor the prime minister had resigned but the president sworn in the chief Justice as the chairman of interim election council of ministers: the unique situation of the rule of law. However, none of the constitutional experts and lawyers did waste time on talking the violation of the rule of law except for Nepal Bar Association that has continued to say that the current government headed by the incumbent chief justice was unconstitutional, and the Bar never recognized it as a valid government.

Jhalanath Khanal and Madhav Nepal must have thought that they could share the offices of president, vice-president, prime minister and speaker or chairman of CA among the leaders of the NC and the CPN-UML. Leaders of CPN-UML have spent a lot of time and energy on demanding the holding of elections to the four major top offices. They wanted their share in the large juicy pie of those powerful offices. They did not care about what the constitution has made the provision for the president and vice-president and so on. They did not care about the mandate they have received from the voters was not for demanding the offices of president and vice-president but crafting a new constitution.

They had set aside the crafting of a new constitution. They have been thinking how to grab the State power, and then use the State resources for the benefits of them, their cadres, relatives and friends. That was what exactly the Rana prime minister did during their hereditary office of prime minister for 104 years of the darkest period of the Nepalese history when Nepalis had nothing but to starve and suffer from diseases and hunger for fattening the mighty Rana families. Chairman of RPP-Nepal Kamal Thapa had been calling for reinstating such kind of the regime but the so-called democratic political leaders have been acting as the neo-Ranas.

Concerning the elections to a new president and a vice-president, the Interim Constitution of Nepal of 2007 has made the following provision:

36B. Election to President: (1) The Constituent Assembly shall elect the President on the basis of political understanding.

(2) If political understanding is not made pursuant to Clause (1), a person who secures a majority of the total number of the then members of the Constituent Assembly shall be deemed elected to the office of President.

(3) Other procedures relating to the election of President shall be as determined by the Constituent Assembly.

(4) If any person holding any political office to be filled by way of election, nomination or appointment is elected to the office of President, such political office shall, ipso facto, be vacant.

36C. Term of office of President: The term of office of the President shall be until the commencement of the constitution to be promulgated by the Constituent Assembly.

Quoting the Article 36B, some of the constitutional experts and politicians advocated for elections to a new president and a vice-president. They argued that the dissolved CA could not craft a new constitution; so, the term of the president elected by the previous CA ended when a new CA was elected, a new president and a new vice-president should be elected. So, the first thing the CA should do was to elect a new president and a new vice-president. The term of the new president and the vice president would end after the crafting of a new constitution.

Other constitutional experts and the NC politicians advocated the term of the president and the vice president would end only after crafting a new constitution following the Article 36C. These guys argued that this Article of the constitution clearly said that the term of the office of the president would end only after the promulgation of a new constitution. If you did not like this Article you could impeach the president with the two-thirds majority, said some of the NC leaders.

Honest constitutional experts said that the new CA should reelect the incumbent president; that would be the correct approach, and would be a middle path between the two constitutional provisions made for the office of the president or this path would meet the provisions made by the two articles concerning the election to a president and the term of the office. So, the first session of the new CA was to elect a new president and a new vice president.

CPN-UML leaders wanted the share in the power rather than following the rule of law. They wanted to bargain with the NC. How far they would be successful to get the share in the emerging power remains to be seen. However, none of the leaders of both the NC and CPN-UML were for stepping back from the respective stand. They did not care about the rule of law, and about the crafting a new constitution but they concerned with the power and money emanating from the power.

Concerning the nominations of candidates for the proportional representation to the newly elected CA, leaders of the political parties did not think they needed to follow their respective party statute rather they nominated their favorites creating uproar against such nominations in each political party. They would have avoided such situation if they were to follow the rule of law.

For example, without following the party statute, chairman of RPP-Nepal Kamal Thapa nominated the people that had bided the highest prices for the slots in the newly elected CA, alleged the dissident group. The group went to the EC, and demanded the EC to annul the list of the nominated candidate submitted by Chairman Thapa, as it was done without following the rule of law. The EC returned the list to the RPP-Nepal for revision.

The dissident group of the RPP-Nepal even went to the EC for registering a breakaway party of the RPP-Nepal but the EC did not registered it without completing the election process. That saved the RPP-Nepal from splitting. If Chairman Thapa had followed the rule of law, nobody could have said anything against the nominations he had made. Thereafter, the local media reported the chairman fired some of the dissident group members.

In the case of the nominations made by the UCPN-Maoist, Chairman Prachanda said that his party had made the list of nominations of the candidates for the proportional representation following the rules but senior leaders Dr Baburam Bhattarai and Narayankaji Shrestha did not show up at the meeting to discuss the nominations but they came out against the list. So, when the party chairman followed the party statute to prepare a list of the nominees, then the senior leaders diverted from the rule thus creating uproar in the party.

NC and CPN-UML had prepared the lists of their favorites for the proportional representations. So, they faced the problem of meeting the demands of leaders and cadres of the parties for including the names of their favorites on the list of the nominees for the proportional representation in the newly elected CA, as neither the top leaders nor other leaders and cadres are for following the rule of law rather for bullying each other. The result was the fight for extracting the maximum benefits from such lucrative positions.

Who should call a first session of the newly elected CA: the president or the chairman of the interim election council of ministers had become the next controversy. Top leaders including the president of NC had been saying that the president should call the first session of the CA following the international practice. Others said that the chairman should call the first session following the provision made in the Interim Constitution of Nepal of 2007

Some advocates had gone to the Supreme Court of Nepal demanding the president should call the first session others also went to the Supreme Court demanding the chairman should call the first session. The apex court had to rule on this issue, yet.

Concerning the calling of the first session of the CA, the interim constitution has made the following provisions.

51. Summoning and prorogation of sessions: (1) The President shall, on the recommendation of the Prime Minister, summon the session of the Legislature- Parliament from time to time.

(2) The President shall, on the recommendation of the Prime Minister, prorogue the session of the Legislature-Parliament.

(3) If, during the prorogation or recess of the session or meeting of the Legislature-Parliament, at least one-fourth of the total number of the then members of the Legislature-Parliament make a petition that it is expedient to convene a session or meeting, the President shall, no later than fifteen days, convene such session or meeting by specifying the date and time for the same, and the session or meeting of the Legislature-Parliament shall commence or be held at the date and time so specified.

Explanation: For the purposes of this Clause, the expression "petition" shall mean a document bearing the signature of the petitioner.

69. Meeting of Constituent Assembly: (1) The first meeting of the Constituent Assembly shall be held as summoned by the Prime Minister within twenty one days after the Election Commission has published the final results of election to the members of the Constituent Assembly; and thereafter, its meetings shall be held at such place and time as may be specified by the person presiding over the Constituent Assembly.

(2) Notwithstanding anything contained in Clause (1), if no less than one-fourth of the members of the Constituent Assembly make a petition, along with the reason, to the Chairperson of the Constituent Assembly that it is necessary to convene a meeting of the Constituent Assembly, the Chairperson shall convene the meeting of the Constituent Assembly no later than fifteen days.

The constitutional provisions clearly stated that both the president and the prime minister could call the first session of the newly elected CA. One could argue that current chairman of interim election council of ministers was not the prime minister. However, he had been working as the prime minister. Following the Article 51 of the Interim Constitution of Nepal of 2007, the president could call the first session if the chairman were to make the recommendation for it. However, Nepal Bar Association did not recognize the chairman as the prime minister. So, only the president remained to call the first session of the CA if everybody were to follow the words of the provisions made in the constitution for calling the first session of the CA.

Others said that the provision of the Article 69 of the constitution was made because at that time the prime minister was officiating head of state. At that time, the king was fired, and a new head of state was not elected, yet. So, the then-prime minister acting as the head of the state called the first session of the CA. These were the facts but nobody had bothered to include such things as an explanation in the constitution making the current controversy, and causing delay in calling the first session of the CA.

The contradictory provisions made in the constitution for the term of the president, and for the calling of the first session of the newly elected CA demonstrated that the prime minister, and the president and political leaders were not serious about the provisions made in the constitution. They did not bother to remove such contradictions in the constitutions. They believed that everything was possible if the leaders of the four-party political mechanism were to build a consensus on anything.

Perhaps the political leaders did not have the constitutional and legal advisors, too. Even if they had they did not listened to the experts. The result was the unnecessary hassle of calling the session of the CA, and of the term of the president.

Obviously, the president also did not bother about reading the constitution. He simply signed off the ordinances once the leaders of his party okayed. As the president, he should keep the constitution with him all the time as the Christian keep the Bible, and every time he needed to do something he needed to consult the constitution. AS the Head of State and the protectorate of the constitution, the president was to remove any virus in the constitution. He should ask the prime minister to avoid any virus in the constitution. Failing to do so, the current president has been facing the problem of his term ending without promulgating a new constitution. If the president were to go without promulgating a new constitution, this event would be another unique event in the political history of Nepal. Some advocates had gone to the Supreme Court of Nepal demanding to suspend the current president paving the way for the new CA electing a new president and, a vice-president. Issuing so many ordinances disregarding vales and principles of the Inerimc Constitution of Nepal of 2007, weakening the constitution considerably. The result was the weak constitution could not protect the president.

Currently, he had been consulting with the constitutional experts, and political leaders and so on to ascertain who should call the session. Constitutional experts and political leaders could not do anything concerning the clearly stated provisions in the constitution. No need of interpretation for such provisions. Only when the provisions were vague and such provisions could be interpreted then experts could provide strong arguments pro or against such provisions.

Currently, the issues of who should call the first session of the CA have been at the Supreme Court of Nepal, and of suspending the current president for electing a new one, the rulings of the apex court would say who would the call first session of the newly elected CA whether the current president would be suspended.

Thereafter, the president would need to face whether the new CA would elect a new president and a new vice president. The current set of the president has been unstable due to the immature formulation of provisions made and then inserted in the Interim Constitution of Nepal of 2007 by the ordinances without seriously looking into whether these provisions were contradictory to each other or not. Constitutional experts and politicians should not repeat such mistakes in the new constitution to be promulgated. Constitutional experts and even the news reporters should keep a watch on such mistakes and they should bring such mistakes to the public notice on time.

On Thursday, January 10, 2014, speaking at an event, President of NC Sushil Koirala squarely blamed the CPN-UML for the current hassle of who should call the first session of the newly elected CA, and whether a president should be elected or not, and even charged the leaders of CPN-UML with doing to make the new CA also a failure, according to the Radio Nepal news aired at 7:00 am morning news on January 11, 2014. Up until then, President of NC Koirala had made not any declaration. Nepalis had anticipated that Koirala might act as Nepalese Mandela but the declaration had frustrated Nepalese people. They have doubted whether Koirala would be able to manage the current political situation. He would be unable to manage the current political situation if he were to follow the constitution. The Interim Constitution of Nepal 0f 2007 has so many amendments to it has clearly made the provision for electing a new president, and the prime minister by the first session of the CA.

On Saturday, January 11, 2014, the Chairman of Interim Council of Ministers made a call for the first session of the newly elected CA at the International Convention on January 21, 2014. The president has lost his status, and the first session of the CA would elect a chairman of the CA, then a president and vice=president, and prime minister as, the president opened the path to do so.

ENDS

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