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The May 28 proceedings

Bipin Adhikari
The Kathmandu Post, 5 June, 2008
Source: The Kathmandu Post

A constituent assembly is not a degradation ceremony. It has to treat itself as worthy of honor, dignity and self-respect which a body worth this name unconditionally needs to maintain its sanctity in the eyes of the common people.

At a minimum, this means the commitment of a constituent assembly to stand by higher principles of constitutional law and justice. These principles must be upheld to maintain the credibility of the house. All rules and practices that are employed at an assembly in breach of such principles not only derogate the status of the house, but also make it vulnerable at the face of challenges that it has to deal with over the next two years.

On 28 May, the Constituent Assembly of Nepal, which has been elected to frame a new constitution in the country, abolished monarchy as the first item on its terms of reference. It also declared the country the world's newest republic. A motion to that effect was moved in the House by the Home Minister on behalf of Prime Minister Girija Prasad Koirala, and was passed without any hitch.

In an Assembly of 601 members, the motion was passed by 560 votes in favour while four members opposed it. The remaining 33 members, who too had the nonnegotiable right to vote, were not in the House to exercise their constituent powers because either they were yet to be elected, or were not nominated by the prime minister in consultation with other parties in

the House. Moreover, the interim Constitution was also amended then and there providing for the positions of the President and vice-president following an unparliamentary summary procedure. Apparently, these proceedings were not sensitive to the requirements of the rule of law—especially against the arbitrary and abusive use of political power.

Constitutionally, the Assembly, in the first place, lacked the basic eligibility to commence its business without fulfilling the membership requirement under Article 63(3) of the Constitution. The House was not complete, without these 26 nominated members, and was not, therefore, entitled to act on behalf of the people of Nepal. This was a mandatory constitutional requirement. The ad hoc chairperson of the House ignored this requirement for unknown reasons, and kicked off the House business as if it is a call beyond duty. This flaw would make all the proceedings of the House leading to the abolition of monarchy, the declaration of the republic and the fourth amendment to the Constitution open to constitutional challenge.

The proceedings of the House, a deliberative body, were also trapped in procedural irregularity of the most unforgivable type. The motion to abolish monarchy and 'operationalize' Article 159 was not subjected to discussion before the voting on it according to the recognized parliamentary practice.

The powers of the Assembly were supposed to be exercised through the deliberative process as laid down by the Constitution. As soon as a motion of this type originates in the House, it is also supposed to be immediately seconded by an interested member from the floor for the consideration of the body as a whole.

If "no second is obtained" within a few moments of proposing the motion, the Assembly cannot consider the motion, and is treated as though it was never offered (although it is recorded in the minutes). Deliberation is the most basic rule of transparency in the business of a constituent assembly. However, in the present case, the chairperson not only declined to ask if there is "a second on the motion," but also scuttled the repeated requests by the opposition group of the RPP-Nepal, the only voice in favor of the constitutional monarchy in the entire Assembly, to allow discussion on the motion.

Thus, the decision of the House came without an opportunity given to the opposition to give alternative perspective to the sovereign people on the issue. It was neither an executive board meeting of a public corporation, where seconding a motion and subsequent discussion has no purpose to serve, nor was it a procedural point of order. It was a deliberate move, premeditated and intended to deprive the people of their opportunity to know the alternative public policy proposal of the opposition on the point. It not only disparaged the prestige of the Assembly, but also put a question mark on its capacity to draft a new democratic Constitution.

The third irregularity, which is no less serious in its magnitude is the implementation of the 'republicanisation plan' without any statutory basis. Article 159 of the Constitution as to the abolition of monarchy and 'operationalization' of the republic was only meant to be an enabling provision in this regard. It was mandatory for the government to enact a suitable statute outlining clear modes operandi to enforce Article over a period of time. During the 1960s, several statutes like Abolition of Princely States Act, the 'Birtaland' Abolition Act and the statute dismantling irregular 'baisi-chaubisi' court systems (that still existed in the 1950s) were enacted establishing clear-cut legal standards and procedures for the alternative arrangement. Such measures were necessary this time around as well not only to ensure the basic rights of the deposed king, but also to protect the legitimate interests of the new republic in the transitional process.

The process of 'operationalization' of the republic is also a handing over process. It is not just about fulfilling the human requirements of the deposed king and his family. Gyanendra is probably the only remaining heir of the dynasty which ruled this country or parts of it for about five hundred years. This country has several known and unknown stakes in him.

The former king must be having many state secrets that this country would like to be transferred to the new regime, put on record, or preserve in the interest of the posterity. It is inconceivable that the kingdom was able to maintain its independence and political sovereignty over the last many centuries without the national defense strategies and home security plans. It is only the deposed king who knows where the shoe pinches as far as major problems of governance of this country are concerned, and the details about many issues of international relations that Nepal has faced on almost everyday basis during the past 58 years.

No doubt, the worst part of the first day proceedings of the Assembly was the vacuum that appeared in the House in the absence of the controversial opponent. The king who had been leveled with so many charges, and had lost the confidence of the House in due course, had every right to appear before it, and respond to the motion, if the proceedings were not meant to be ex parte actions. The people also had the fundamental right to know what the besieged monarch had to say on the charge-sheet brought against him. Needless to say, the proceedings of the House could be challenged for the mala fide use of its constituent powers.

A constituent assembly cannot decide a case without ensuring its opponent an opportunity to be heard. This has given the impression to many that the House acted on revenge—in a way that is not befitting to a civilized society. Such an impression has further been consolidated by the liberty being taken by the high level committee for the 'operationalization' of the republic in dealing with the deposed monarch including the 15-day eviction notice without any discernible legal basis.

The notion that public humiliation of anyone will induce him to behave better goes against human psychology. Such infliction of humiliation is a profoundly violent psychological act that will leave the deposed king and many others thinking logically with a deep wound to their psyche.

In any case, the May 28 proceeding was not just a logical fallacy (i.e. two wrongs do not make a right), but also a stimulated exercise shrinking the parameters of constitutionality for speculative gains. That law is informed by political considerations is not a new insight, but in the long run, consistently upholding the rule of law will work in the best interest of all—including those who are in the driving seat of the nation at present.

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