Prime minister versus president

Unexpected political developments have, again, dragged Nepal towards uncertainty and chaos. On 3 M ay, Prime Minister Pushpa Kamal Dahal made a unilateral decision to sack Chief of the Army Staff Rukmangud Katawal, despite opposition from all non-Maoists in the coalition cabinet. A few hours later, President Ram Baran Yadav issued an order to General Katawal, asking him to "continue in his office in his capacity as per the Interim Constitution, 2007, and the existing law." Most of the discontent and political activities that have taken place since then have been a direct result of these two power moves.

The following day, Prime Minister Dahal announced his resignation. He described the move by President Yadav as unconstitutional and a result of foreign influence. A few hours after the resignation, a Kathmandu-based television station, Image Channel, broadcast a videotape from January 2008, showing Dahal (aka 'Prachanda') telling his People's Liberation Army (PLA) commanders how the Maoist party had double-crossed all stakeholders to the peace process. Dahal described the tactics that the party intended to use to take over state power, through indoctrination of the national army, wholesale integration of Maoist fighters into that force, and use of violence and money to influence the Constituent Assembly elections. The Maoists had also, the Maoist chairman claimed, duped the UN Mission in Nepal (UNMIN) into accepting almost three times more people into the cantonments than the Maoists actually had fighters. (Following its creation in January 2007, one of UNMIN's central responsibilities had been to verify who would and who would not be accepted into the seven major cantonments set up to house the former Maoist cadre. UNMIN eventually verified 19,206 such cadre; in the videotape, however, Prachanda said the real number had been only 7000 to 8000.)

After the prime minister's resignation, President Yadav directed the other political parties to form a government by consensus by 10 May. Over the subsequent weeks, the Maoists conducted large-scale nationwide protests against what they have dubbed the president's "constitutional coup". With the initial due date set by the president having elapsed, the matter was referred to the Constituent Assembly, which also doubles as a Parliament, for a government by majority vote. Having set a fine example by their resignation, the Maoists chose to block the procedures for formation of a new government by disrupting the work of the Constituent Assembly. Their demand was for President Yadav to apologise for his unconstitutional decision to retain Gen Katawal, and for the latter to be sacked. It seemed unlikely that any of the other parties would go along with the Maoists on this, all of them having petitioned President Yadav in writing to overturn the Maoist action against the chief of the army.

Vague directives
Although many political analysts have described the row between the prime minister and the president as a politically motivated wrangle, it is pertinent at this time to discuss what exactly the constitution specifies in this regard. Meanwhile, it must be remembered that parallel writ petitions are presently before the Supreme Court challenging both the prime minister's decision and the president's move on constitutional grounds.

The problem, as usual, is of the studious ambiguity of existing laws. Both the Interim Constitution and the Army Act (passed in 2006) are vague in pinpointing the 'termination process' of an army chief. The Maoists, who unilaterally decided to kick out General Katawal, held that the stature of the president as a ceremonial figure does not allow him to intervene on matters decided by the executive. According to them, the president's move reeks of regression, as it was a prima facie case of procedural error.

The president's office defended his action by stating that he had resorted to his incumbent position as the supreme commander of the Nepal Army, which at the very least required the prime minister to consult him on decisions regarding the fate of the army chief. Additionally, the decision of the executive cabinet had to be routed through the president as supreme commander, whereas the president's office was only provided a note 'for information'. The president's office puts forward the logic that the prime minister had transgressed the spirit of the interim constitution, which explicitly mentions that "the conduct of business of the government of Nepal shall be carried out consistently with the aspirations of the united people's movement, political consensus and culture of mutual cooperation".

At a time when the peace process was not ended, it was additionally important to take a decision on the Nepal Army through consensus, as constitutionally stipulated. The Maoists had breached the stipulation by sacking the army chief without reasonable grounds. The president's office also points to the series of memos sent to the prime minister's office regarding the discussions held between the head of state and head of government, alerting the latter to the requirement of consensus. The fact that the decision of the cabinet was made with only the Maoist ministers present and signing, and that all other political parties in the Constituent Assembly, constituting a majority, had sought the president to rescind the cabinet's decision, is also thought to go in the president's favour.

Amidst the turmoil and instability that has marked the Nepali polity over the last couple of years, the Supreme Court has emerged as an institution on which some hopes have come to be pinned. It has taken a series of decisions on critically important constitutional matters, which reassure the public of its probity and sense of responsibility. In May, amidst speculation that there might be a break with tradition (which proved unfounded), a well-regarded and independent-minded judge, Min Bahadur Rayamajhi, was elevated to the position of chief justice. Today, all eyes are on the bench on the two writ petitions filed on the back-to-back decisions of the cabinet and the office of the president.

There are those who feel that, while the president may have been forced into his questionable decision because of a prejudiced action by the government, a poor precedent has nevertheless been set. To them, a question mark continues to hang over the president's countermanding order for the reinstatement of General Katawal: What would happen if the president continues to trample substantive laws in future, by taking advantage of a liberal interpretation of his constitutional power?

The answer to that, according to some, would be to see whether President Yadav exhibits any adventurism beyond the decision he took on the night of 3 May. But the row has already stirred up a serious constitutional crisis – and, perhaps more worryingly, one accompanied by a legal vacuum, which needs to be filled in as soon as possible.

End of consensus
One way or another, these developments have clearly threatened Nepal's peace process. With rapid political polarisation in the aftermath of the Katawal matter, the multiparty consensus in which the peace process had been anchored – and which had carried the parties through many a previous crisis – has been rent apart. The Constituent Assembly proceedings, already frequently interrupted through boycotts, particularly by the opposition Nepali Congress party, have come to an abrupt halt. It is now increasingly likely that the new constitution will not be finalised by the deadline of May 2010.

As the situation deteriorates, events in Kathmandu are feeding down to the local level elsewhere in the country. In the immediate aftermath of the resignation, the Maoist leadership instituted a series of protest programmes throughout the country, and in all likelihood they would continue – especially given that the seniormost Maoist leaders have hinted darkly that a Supreme Court decision that went against them would not be acceptable to the "court of the people". Meanwhile, Maoist cadres in districts such as Ramechhap, in eastern Nepal, have publicly warned political activists supporting President Yadav's move to leave their localities. Some Maoists themselves have also been injured by police action during protest actions throughout the country.

The polarisation among the political players seemed nearly complete at the end of May. If the Maoists chose the path of continuous violent demonstrations, the already unstable law-and-order situation would deteriorate further, and the new government would find it impossible to govern. If the atmosphere deteriorated further, a violent confrontation between the Maoist ex-combatants and the national army could not be ruled out. What many were calling for was a 'rainbow coalition' government, to be led by the centrist Communist Party of Nepal (Unified Marxist-Leninist) formed on the basis of a renewed compromise. However, what is more likely is a new UML-led coalition government without the Maoists.

Amidst the uncertainties, unpredictability and instability of the present situation in Kathmandu, all the players are asked to remember two foundational facts – that the peace process in Nepal has come to the current point on the basis of political consensus, and that the Maoists have reiterated their commitment to the peace process. The political consensus reverts back to the 12-point agreement of November 2005 between the political parties and the Maoists, who were still underground at that point. This spirit of consensus held through the People's Movement of April 2006, the interim government of the next two years, and the elections of April 2008.

The consensus, which was supposed to last through the promulgation of the new constitution, saw its first break when the Maoists chose to form a government with the Nepali Congress party in opposition. Nevertheless, there was a modicum of agreement that continued to exist – all of which has now been abandoned with the Katawal episode, which has also dragged the office of the president into controversy at a time when that institution needed to be kept above controversy for the sake of national unity and stability. Clearly, a revival of consensus is of utmost importance, to get the people out of the present situation of polarisation and also for the writing of the new constitution.

Institutionalised impunity
The crisis has demonstrated once again how due process and the rule of law are manipulated by the political forces of Nepal. The far-reaching effects of such moves have also become apparent. The Maoist leitmotif behind the army-chief row – which cost them the government they were leading – was that the party leadership wanted to ensure 'civilian supremacy' by taking action against a 'disobedient' army chief. But civilian supremacy, undoubtedly, is not the supremacy of the Maoists. Rather, it rests upon the supremacy of law and justice, as also defined in the current context by the consensus demand of the Interim Constitution. However, what is currently being witnessed in Nepal is a jockeying by the main political parties to obtain control over the Nepal Army.

Amidst the smoke and dust, what is not taking place is the genuine attempt to turn the army into a state institution, one accountable to the people through the Ministry of Defence, the Parliament and other transparent processes. There are those who say that all this will happen once the current spat, between the Maoists on one side and the president and the rest of the political forces, is over. But there is no denying that the Nepal Army has gained stature and power as a result of the present crisis, and this could come to haunt all political parties in future if there is not a consolidation of civilian supremacy as rightly understood.

Another mistake has been to believe that one aspect of the peace process does not affect others. Indeed, so many other urgent matters have been shelved as the all-consuming political fray takes centre stage. This is particularly true with regard to the situation of near-total impunity that exists for human-rights violations. Though 'transitional justice' has been clearly been confirmed as a central strut of the peace process – through the Comprehensive Peace Agreement and other agreements – it has been overlooked by all sides, as well as by a largely complacent international community. Yet the endurance of impunity in Nepal is a stumbling block to achieving this highest democratic ideal of civilian control over the security forces. Impunity, both de facto and de jure, continues to ail the country. It beggars belief, but the reality is that there is currently not even a single instance of a perpetrator of conflict-era human-rights violations being brought to book in Nepal. Interestingly, this was an area of negligible priority for the Maoist-led government, with the Maoist leaders seemingly unwilling to raise matters about security-forces excesses. This could possibly come back to haunt them as well, for atrocities committed by the Maoists during the years of the 'people's war'.

Impunity is equally a symptom of the lack of civilian control over the Nepal Army and the over the People's Liberation Army. Commenting on the failure of the peace process in Nepal, the rights activist Suhas Chakma, of the Asia Centre for Human Rights, has written:

The consequence is that the debate over integration/demobilization is now restricted to the belligerent parties. Under these circumstances national political mechanisms are visibly impotent against the threat of use of arms. They are failing to resolve the central issue of integration and allowing rhetoric to further destabilise the fragile peace. The dangers to the wider peace process of allowing the two armies to decide their own future should now be obvious: as long as the arms remain in the equation both armies have an effective veto on the whole peace process.

Issues of impunity, civilian control over the army and integration/demobilisation are inherently linked, and should be addressed as such. In most peace processes, the process of disarmament, demobilisation and reintegration of combatants (so-called DDR) is considered an integral part of post-conflict peace-building. While the actual destruction of weapons and decisions on the future of former combatants tend to come towards the end of the transition, much work is done during the earlier phases of any peace process – not in the least, to address past rights abuses and to screen out those responsible for them from any future position in the security forces.

In contrast, in Nepal, addressing impunity as a part of DDR was never thought to be necessary in order to direct the peace process to a meaningful conclusion. The reason is clearly the deeply entrenched political psychology in Nepal that values 'might' over 'right'. The Maoists flexed their military strength to assert themselves, and still give passing references of their arms and power, in order to maintain what Chairman Dahal, in his videotape, referred repeatedly to as atanka, or terror. The political parties, wary of the Maoists' military aggrandisement, mollycoddled the Nepal Army as a check-and-balance strategy, instead of taking initiatives to democratise and professionalise its ranks.

The crisis of confidence among the seven political parties and the Maoists has continued despite cosmetic pacts and agreements to start a healthy democratic political culture. This led directly to their failure to establish transitional-justice mechanisms, and the subsequent screening and vetting of army officials (including PLA personnel) involved in rights violations. As such, this inevitably furthered the institutionalisation of impunity. As long as the peace process does not addressing past violations, those with arms will be able to undermine the peace process. And the more the political parties align behind the two forces (the Nepal Army and the PLA), the greater the threat to the peace process and the chances of a return to conflict.

If the country were to return to conflict, there is a threat of many deeper human-rights problems surfacing. Rights violations have decreased since the People's Movement of April 2006, though they have by no means stopped. But because there have been no structural changes in the two armed forces, an improvement in the rights situation is largely an illusion. A return to conflict is indeed possible; meanwhile, the means to limit the subsequent violence, namely the authority of the state, has considerably weakened. A combination of these factors means that a return to conflict would signify nothing less than a human-rights crisis.

It is time for the human-rights community to ensure that human rights and the rule of law have a central place in the peace process that once again emerges from this current crisis. It is now time to show that it is impunity that courses through the present political crisis in Nepal. Under the current circumstances, human rights and the rule of law can be utilised as guiding principles in order to take the parties out of this crisis and increase confidence in the government and the political parties, including the Maoists. Through their actions, the latter need to show that they are committed to democratising state institutions, and institutionalising the changes demanded by the People's Movement of 2006.