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Issues surrounding abolition of monarchy

Bipin Adhikari
The Kathmandu Post, 22 May, 2008
Source: The Kathmandu Post

With less than a week left for the apparent end of monarchy, the CPN (Maoist) leaders have intensified their demand that King Gyanendra leave the palace well before May 28. This is the fateful date set by Prime Minister Girija Prasad Koirala for the first meeting of the newly elected Constituent Assembly, where he is going to table a motion to abolish monarchy, and lay down the foundation of the 'New Nepal.'

In the first meeting of the Constituent Assembly, Prime Minister Koirala is supposed to invoke Article 159 of the Interim Constitution, which gives him power to table such a motion, and the members of the Assembly are to vote on it according to Article 75. The fathers of the Interim Constitution, who believed that revolutions know no bounds of law, probably thought that the Assembly does not need any governing principles as to how the decision of the House is to be made and implemented.

As such, the existing interim parliament, the unelected members of which are still drawing their remuneration from the national coffer, did not think of the Abolition of Monarchy Act to meet the requirement of the due process. So the decision to be made politically is also likely to be implemented in a most controversial way.

While the Assembly process is yet to begin, the Maoist leaders have already started threatening the king and his family to leave the Narayanhiti palace as fast as possible. They have consistently indicated the possibility of the use of force to get the king out after May 28. Prime Minister Koirala too is on record several times for having said that the king should abdicate, and make the transition smooth. His remarks, although not as bitter as that of the Maoist leaders, also had contents of a veiled threat. While it is not clear why the Maoists want the king to leave the palace, at least a day before, or what political benefits will accrue to them if the king really gratifies them by accepting the request, the issues that involve in this context go beyond. The concern here is emphatically legal.

To a lawyer, it is not understandable how somebody can execute a decree without a court first awarding it. For example, whether a decree is for payment of money or for the recovery of any land or property, it must first be obtained from a law court. Such a decree gives necessary entitlement to the decree-holder to execute the decree against the judgment debtors. Then the execution may be effected by delivery of property, or by attachment and sale, or arrest of the defaulter, or in such other manner as the nature of the relief granted may require. This is what the civil law of Nepal states. Unless it does not apply to King Gyanendra, there is no reason why the rule of law should be parted with like this. Hence, the May 28 process must first be complied with before asking the King to leave the palace.

Again, Narayanhiti is not an illegal possession of the monarch. He is not its illegal occupant. He has every right to stay there until the law of the land is amended and he is deprived of his possession based on a valid piece of law. The legal tradition of this country builds around the principle that possession is 9/10ths of the law — or that one who has physical control of his property is clearly at an advantage should his rightful ownership of the property ever be subject to challenge. Even when a tiny public company is liquidated, it takes months to settle all claims. It is not convincing when the king as an ordinary individual is deprived of this process. It is better for the 'new regime', therefore, to wait for the May 28 process, and follow the legitimate course afterwards so that when they are at low ebbs, the legal system is able to protect their legitimate rights too.

King Charles the First, known as a noted English autocrat, was put on trial in January 1649 and executed following disagreements between him and his rump Parliament controlled by the army. Both sides claimed that they stood for the rule of law. The rump Parliament, with the backing of the army, established a High Court of Justice, where he was charged with high treason 'against the realm of England'.

The only people allowed into Parliament were those who Oliver Cromwell (Prachanda's rightist counterpart by analogy) thought supported the trial of the king. In fact only 68 out of 135 judges turned up for the trial. The public was not allowed into the hall until after the charge had been read out. The king refused to plead guilty, saying that he did not recognize the legality of the High Court in the first place. He said it was established by a Commons purged of dissent, which had never acted as a judicature, and without the House of Lords.

On the scaffold, the man who was to execute Charles refused to do it. So did others. Very quickly, another man and his assistant were found to do the job. His last speech to the crowd was "I have delivered to my conscience; I pray (to) God you do take those courses that are best for the good of the kingdom and (to) your own salvation."

Time changed even if some people were not looking forward to it. When Charles II returned to become King of England in 1660, following a long period of instability, those men who had signed his father's death warrant (and were still alive) were tried as regicides (the murderer of a king) and executed. Everyone associated with the execution except the executioners of Charles was put on trial. These executioners were able to escape as no-one knew who they were. After a struggle for about twenty years between royalists and republicans, monarchy was restored, and the English people again became subjects of the head of the Scottish house of Stuart. The main reason behind it was the unfair trial of Charles I.

In a similar case in Nepal, where it is not an army-supported trial which is involved in the abolition of monarchy, the Assembly should indeed enable the controversial monarch to contest the motion against him in the House, and present his version of the story before the actual voting under Article 75 of the Constitution. It will be too youthful to think that this can any way change the mood of the Assembly, or of the revolution which is making advances.

Nevertheless, the king of Nepal, who is being treated as the principal defendant should have the opportunity to speak to the people who must know what the other side of the story is. In democracy it matters; and it matters in the most powerful sense. The king is not being toppled, he is being laid off. If this is the truth, then the process requires that he must be allowed an adequate opportunity to present his case. Additionally, even if the faulty Constitution is silent on whether the sovereign representatives of the people have the right to caste their vote of conscience on the issue, they should be afforded this opportunity without expressing or implying whips from their parliamentary parties.

Eventually, those who are said to be making history should make it on the strength of self-respect and certain universal values. These values — justice, equality, the rule of law, to mention the most basic ones — need to be protected, no matter who gains from it. It might delay the process a little, but it can surely give a clear outlet to the problem and a firm footing to the democrats.

Copyright @ Bipin Adhikari,