Assembly dead, what next?
KATHMANDU, MAY 28 -
With Prime Minister Baburam Bhattarai “unilaterally” declaring the date for fresh elections to the Constituent Assembly, the country seemed headed for another stage of political turmoil with some of the major parties opposing the move.
No sooner had the PM announced the polls—just an hour before he would be rendered “caretaker” by 12 midnight—the NC and the UML came out strongly, terming the decision as “unconstitutional” on two grounds. First, the Interim Constitution does not imagine two CA elections unless there is an amendment, which did not happen. Second, the PM took the decision with “mala fide intention”—he took the unilateral decision when he was about to be rendered caretaker after the CA’s dissolution. Experts now say this is already a matter of judicial review and only the Supreme Court can explain the political, legal and constitutional legitimacy of Bhattarai’s decision. Though the PM’s recommendation was already submitted to President Ram Baran Yadav, the head of state was yet to take a call by the time the Post went to press in the wee hours on Monday. While the PM’s legal advisors said the President has no alternative but to endorse the government’s decision, the NC and the UML said he may not approve it.
PM Bhattarai, however, is confident that he is right in all respects, given the circumstances. He had consulted his legal advisors just before he summoned a Cabinet meeting that took the decision late on Sunday night. Bhattarai has said it is ridiculous on the part of the NC and the UML to welcome the Supreme Court decision on CA term extension, and at the same time, reject the government’s call to go for fresh polls as per the same court directive. “I don’t see any logic when the NC and the UML decry the government’s decision on fresh polls. The government is just implementing the court directives, which have to be respected by all who believe in democracy and independent judiciary,” said Advocate Raman Shrestha, who was among the experts advising the PM on Sunday. The court decision on CA term extension directs the government to opt (before its term expires) for any of the three alternatives: New CA elections, referendum on remaining differences, or any other constitutional alternative.
“If the court order was to be followed, the PM had to go for any of the three alternatives before the CA term would expire at midnight. That’s what the PM did,” said Shrestha.
Bhattarai belives that since the president is a ceremonial one, he has no option but to endorse the Cabinet’s recommendation. However, things did not look as easy as Bhattarai thought it would be. With both the NC and the UML standing against the PM’s move, the President decided to weigh what would be right move for him.
Constitutional experts close to the NC and the UML argue that Bhattarai’s move is bound to face both political and constitutional legitimacy crises. Advocate Chandra Kant Gyawali, who spoke to the Post after midnight, said the government move could be declared invalid for having “mala fide intention” on the part of the PM. “The PM declared the date for the polls knowing very well that he was going to be rendered caretaker after one hour,” said Gyawali. “This proves he had mala fide intention. This is a matter of judicial review.”
Some law experts and NC leaders also argue that another hole in the PM’s decision was that there can be no elections to the CA without a constitutional amendment provisioning for the polls. “How can the government go for polls when there is no law for the same?” questioned Ram Saran Mahat.
In a nutshell
Govt proposes fresh CA elections on November 22.
Sunday’s development likely to trigger legal and constitutional crises.
NC, UML say PM has no constitutional and legal grounds to continue.
PM blames NC, UML for ‘sad’ CA dissolution.
Bhattarai urges people to be optimistic.
Source: The Kathmandu Post
