KP Sharma Oli’s political star rose in 2015 with his co-leadership of constitution-promulgation (along with Sushil Koirala of Nepali Congress). His standing up to India during the 2015-16 border blockade further bolstered his national standing. But his shine seems to be wearing off.

The leader who once vehemently defended the constitution has now been accused of abusing it, even as his decision to dissolve the parliament and call for midterm elections is being tested in the Supreme Court.

Whatever the court’s decision, it is certain to divide the forces involved in constitution-making and promulgation. If the court overturns Oli’s decision, he and his loyalists are likely to criticize the constitution for not allowing the elected prime minister to seek a fresh mandate. They could also question the court’s jurisdiction.  

“Even if the court reinstates the parliament, political forces will be divided for and against its decision. Oli loyalists will criticize the unclear provision in the statute and question the court’s supremacy,” says political analyst CK Lal. “If the apex court doesn’t reinstate the parliament, other forces will protest. Even the court has to decide based on the principle of necessity in the absence of a clear provision in the statute: this represents the constitution’s failure”. Lal is among a handful of analysts who have been proclaiming the new constitution’s death since its promulgation.

Some sections of the society already had grievances against the constitution. Division among its guardians may further encourage internal and external dissident forces that were unhappy with the constitution, according to Lal.

Another political analyst Chandra Dev Bhatta offers a different logic for the constitution’s possible failure.

“There is lack of balance between our political culture and spirit of the constitution. The political culture needed to uphold constitutional behavior is yet to evolve in our country. In such a situation no constitution can function,” he argues.

Nepal has adopted seven constitutions in seven decades, and yet they were all contentious.

Bhatta says Nepal’s power-centric political culture contributes to the constitution’s dysfunctionality. “It creates soft social violence and foments uncertainty."

Lal and Bhatta both agree that as the constitution was promulgated by top political leaders without much discussion in the Constituent Assembly, the statute had a weak foundation right from the start.

Checked constitutional history

The first and second Constituent Assembly (CA) carried intensive debates over whether the prime minister should be allowed to dissolve the parliament. After studying the constitutions of various countries with parliamentary systems, the first CA had suggested some remedies.

The 1990 constitution had given the prime minister absolute authority to dissolve the parliament. The then Prime Minister Girija Prasad Koirala dissolved the parliament in 1994 after MPs of his own Congress party didn’t support government policy and programs.

CPN-UML’s Manmohan Adhikari became prime minister after Koirala, but without the parliament’s majority support. When Adhikari also decided to dissolve the parliament in 1995, just a year after Koirala, the court overturned the decision. The judiciary had to face a backlash when the Supreme Court ordered the reinstatement of a parliament dissolved by a popular communist prime minister.

Then, again, Sher Bahadur Deuba dissolved the parliament in 2002 paving the way for King Gyanendra’s state take-over.

“When one after another government head started misusing the power to dissolve the House, the Supreme Court started scrutinizing the provision,” recalls NC leader Radheshyam Adhikari. “The new constitution thus included conditions that prevented the prime minister from dissolving parliament when he faced trouble in his party.”

During the constitution-making process, parties and lawmakers carried out intensive debates on ensuring government stability through various measures. The Maoists wanted a directly elected executive president, the NC proposed parliamentary system without giving the prime minister the power to dissolve the House, while the UML lobbied for a directly elected executive prime minister.

The Maoists were the largest party in the first CA, but the assembly failed to deliver a new constitution. In the second CA, Congress emerged the largest party and dominated constitution-making process with its agendas.

The second CA agreed to adopt a parliamentary system with strict conditions on when the prime minister could dissolve the parliament. According to former CA members, the prime minister has the right to dissolve parliament only if the House cannot offer an option for an alternative government.

Against social contract

Over 200 advocates have lined up to argue against House dissolution at the Supreme Court.

Defending the writ petitions registered against the dissolution, advocates argue that if Oli’s move is not overturned, it could lead to a collapse of the new constitution.

Lawyers argue that House dissolution is not just against the spirit of the constitution but also against its preamble which states that the country’s sovereignty rests with the people and the prime minister as such cannot act on his own. PM Oli on the other hand argues that he has called for mid-term polls to let people make their choice.

Legal eagles argue that elected representatives must abide by the social contract theory that lays out obligations of people’s representatives to their voters. If the people are the final source of power, says the theory, the executive elected by people’s representatives can’t use executive authority without their consent.

“New conditions were added on parliament dissolution to give the government more stability and to bar the prime minister from being an autocrat. The recent decision on House dissolution undercuts both motives,” says NC leader Adhikari, a member of the two Constituent Assemblies.

“As one of the signatories to the new constitution, Oli was expected to safeguard the constitution and own up its spirit. Yet he has done the exact opposite,” he adds.

The issue of constitution failure has resurfaced also because of division among forces involved in constitution promulgation.

Nepali Congress is expected to benefit electorally from the ruling party’s split. But it too has been demanding parliament reinstatement. NC leaders say that if the court approves of the prime minister’s move, it could herald another cycle of instability. The precedent would allow future prime ministers to act likewise.

“Oli jee dissolved the parliament without allowing the House to exercise its authority to form an alternative government. He has attacked the main spirit of the new constitution. If Oli’s move is endorsed, this constitution’s life could also be short-lived,” Adhikari says.

Addressing a mass rally in Kathmandu last week, Pushpa Kamal Dahal, leader of dissident Nepal Communist Party (NCP), said: "The prime minister, by dissolving the parliament, has tried to undo the constitution, throw out federalism and derail the peace process."

Constitutional expert Bipin Adhikari has a slightly different take. “The ongoing debate is limited to whether the prime minister has the power to dissolve the parliament without testing the options of forming an alternative government in the House. I hope the court will define it in line with the spirit of the new constitution.” But he disagrees that this represents constitution’s failure. “The majority power in the country is still in favor of this statute”.

Indian hand?

Some suspected the southern neighbor, which had just ‘noted’ the promulgation of Nepal’s new constitution in 2015, of instigating Oli to dissolve the parliament. India had been alienated as Nepali leaders supposedly failed to address its concerns in the new constitution. India then resorted to the infamous blockade.

The prime minister’s House dissolution decision coincided with Nepal visit of Indian Army Chief Manoj Mukund Naravane, and chief of its external intelligence agency the Research and Analysis Wing (R&AW), Samant Goel. This buttressed the argument of India’s direct hand in House dissolution.

“India had just noted the constitution as it had certain reservations. Internally there were dissenting voices and externally our neighbor was not happy about it,” analyst Bhatta adds. “Third, as I said earlier, our political culture and constitutional spirit don’t match. All these factors are causing constitutional problems”.

A section of intelligentsia was already suspicious after Oli decided to incorporate Lipulekh, Limpiadhura and Kalapani in the country’s constitution without holding any talks with India. Even if there were to be a negotiated settlement with India tomorrow, which Nepali government would now dare to amend the constitution to ‘break Nepal’?

CK Lal says: “India may not be involved in fomenting further political instability in Nepal. But it will look to secure its interest whatever transpires next."

The rise of pro-Hindu leaders in India has been interpreted as a threat to secularism. When asked if India could try to revive the Hindu state in Nepal, Lal says instability could give a boost to such illiberal political impulses. “Hindustan may want to reinstate Nepal as Hindu nation while at the same time Nepal’s bureaucracy and conservative forces want to scrap federalism,” Lal says.