On the Constitutional Crisis of Nepal and the “Power to Remove Difficulties”

Tutkimustuotos: ArtikkelijulkaisuArtikkeliTieteellinenvertaisarvioitu

Abstrakti

This Article examines the recent constitutional crisis of Nepal in 2012-2013. The crisis refers to a time period between the dissolution of the first Constituent Assembly and the election of the second. The constitution-drafting process (begun in 2007) dragged on for several years and eventually exhausted the mandate of the Constituent Assembly despite several extensions. The dissolution of the Assembly in May 2012 led to a political impasse - a crisis of constitutional calibre from where the Interim Constitution seemed to provide no exit. In effect, Nepal had no constituent body to finalise the constitution, and no constitutional framework nor parliament to facilitate the re-establishment of such a body. It seemed that the constitutional process had been overcome by the complexities of post-conflict politics, which in the case of Nepal largely revolves around ethnic politics and federalism. In addition to explaining the course of the crisis, the Article introduces the key provision of the Interim Constitution applied to resolve the situation: the presidential “Power to Remove Difficulties” provided in its Article 158. Far from uncontroversial, this uncommon remnant of former royal prerogatives nonetheless enabled the post-conflict politics to return back to the track of constitution-making. To shed light on the nature of this Power, this Article explains the provision in its constitutional context and provides an overview of the jurisprudence of the Supreme Court of Nepal concerning it. The Article concludes by pointing out the contradictory result of the use of the Power to Remove Difficulties. While on the one hand it has indeed led into new elections and the recovery of the constitutional process, it may at the same time have opened up new avenues of political exceptions the kind of which are very likely to follow in the future of the process.
Alkuperäiskielienglanti
LehtiVerfassung und Recht in Übersee. Law and Politics in Africa, Asia, and Latin America
Vuosikerta48
Numero2
Sivut187-204
Sivumäärä17
ISSN0506-7286
TilaJulkaistu - 2015
OKM-julkaisutyyppiA1 Alkuperäisartikkeli tieteellisessä aikakauslehdessä, vertaisarvioitu

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