The Supreme Question

Dr Bipin Adhikari

There cannot be any legal concept as the 'supremacy' or 'sovereignty' of the House of Representatives in Nepal, argues BIPIN ADHIKARI, if anything is supreme in a system of the rule of law that this country has, it is the Constitution, the main governing law of the land.

The newly formed government of the Seven Party Alliance (SPA) is making historic decisions, one after another. But many of such decisions appear rundown in terms of legality. 

Several crucial decisions are being made everyday since the restored House of Representatives started to function on April 29. The government has dissolved the municipal bodies constituted after the February 2006 polls, decided to rescind all legislation, decrees, appointments and other moves made by the king-led government, declared ceasefire, dropped the terrorism-related charges against the Maoists, and asked Interpol to quash international arrest warrants for their leaders. It has also ordered a judicial inquiry on the abuse of power by the security forces during the mass movement last month. Additionally, the CPN (Maoist) has also been called to come forward to discuss with the government on how to get ahead with the contentious issues. The May 19 Proclamation of the House is the most critical of all.

While a generalized frugality has undoubtedly prevailed in making all these decisions, the idea of proclamation of the HoR having effect of law overriding the Constitution is as much an anarchic notion of legality as the use of Public Security Act to arrest and try public servants who resisted the demand for the restoration of the House and formation of a democratic government. 

Thus, the SPA government has shown some extreme examples of the abuse of legal process and stunning political arrogance that make the status of the rule of law in the country wobbly. 

The idea of legality involves the requirement that all authority be constituted, and all power be exercised, lawfully. In a democratic society, the power of the HoR is limited mainly to law-making and policy issues as they fall under the given constitution. This principle is not only reduced in practical content, but it is also at risk of being subverted, if it is not sustained in that spirit. There are times, and circumstances, which place a society's commitment to legality under particular stress. But that cannot be an excuse all the time. The government and the House themselves must value legality. After all, it is the ultimate foundation of their authority and stability. In its absence, no courts can function independently, or exercise their capacity to declare and enforce limits on governmental and legislative authority. 

The popular opinion in Kathmandu, often supported by the mainstream media, is that since the reinstatement of the House is politically enforced, it is not necessary for the newly constituted government and the HoR to conform to the existing constitutional process in their plan, programs and decision-making. Even some established lawyers, who took part in the mass movement, are saying that the movement backs up the SPA government, and the legal and constitutional underpinnings do not matter much in the process. It is on the ground of revolutionary legality, for example, that the splinter Nepali Congress (Democratic) was given a party status in the House of Representatives, disregarding the law, which states otherwise. It is yet another common hazard which remains unbound by any predictable principles and rules. 

There cannot be any legal concept as the 'supremacy' or 'sovereignty' of the House of Representatives in Nepal. If anything is supreme in a system of the rule of law that this country has, it is the Constitution, the main governing law of the country. People definitely are supreme or sovereign, but this does not mean the supremacy or sovereignty of the politicians, or their executive or technical hands. The requirement of complying with the rule of law is as much necessary in the transitional business of the government as the need to make sure that the state functionaries, including the HoR, act according to the concept of legality, and refrain from minimizing the existing constitutional standards, if not more. The sanctity of the rule of law must be preserved in the transitional process until a new rule of law is established and until there is a dependable exit to the political controversies and a better constitutional regime. 

The House proclamation, the way it has broken into the scene, cannot be anything more than a political resolution of the representatives of the people, which needs to be materialized through the constitutional amendment process, making it an enforceable document. This is necessary for the sanctity of the document itself, and also to protect the system from degenerating into arbitrariness and even anarchy. The contents of the proclamation, such as placing the army under parliament's control, abolition of the king's key advisory body, the Raj Parishad, from the Constitution; bringing the king's income and property under the tax net of the government; and making the King amenable to the jurisdiction of the administration of justice; etc are not politically questionable proposals in themselves. But they require going through the constitutional amendment process, which guarantees a minimum level of discussion, and the standard procedures which must be complied with, before they establish their credential as the rule of the Constitution. Unless the right spirit, the right attitude and right disposition is there, this proclamation, with such a significant constitutional importance, is not worth the paper it is proclaimed on. 

There are many more crucial changes in the pipeline. They may take an unusually long period to get fully accomplished. Those who look only to the past or present in the process of change are certain to miss the future – which is yet to unfold, and also depend on many political variables. It is for this reason that the sanctity of the constitutional process must be maintained. The Constitution can always be amended, if it does not give political outlet (as it appears to be the present case). If the HoR goes on assuming overriding powers over the Constitution, deliberately sidelining democratic institutions and procedures, it is clearly an evidence of the fact that the movement is declining in terms of its commitment to the democratic process. Again, the Proclamation is not coming out all of a sudden as in the case of magna carta (which the King of England signed in 1215). The Proclamation has come in the background of a written constitution. If the Maoists demonstrating on the streets of Katmandu are seen as the basis for continued legality of the proclamation, sooner or later, this sort of civil liberties fetishism will only push the country into a deeper crisis than ever before. 

The SPA demanded the reinstatement of the HoR, dissolved four years ago, because they thought a legitimate forum, based on certain constitutional parameters, could be immediately available to discuss the prime agendas of the nation. But this objective seems to be dwindling, and the activities of the government are being carried out with least regards to the rule of law traditions. The first and foremost need at present is to legitimize the House, reinstated by the king, by amending the Constitution, and giving it powers, responsibilities and life, and a clear constitutional status befitting the transitional process (in all areas where it cannot give outlet to the current political agenda). 

This obviously necessitates the reinstatement of the National Assembly and implementation of the rules regarding parliamentary decision-making. Such an amendment must also provide for interim arrangement as agreed with the Maoists. Until the constituent assembly completes its job, the role of the House in maintaining continued legality, performing essential legislative functions, and forming an interim government will remain crucial. This arrangement can also keep the Supreme Court functionally alive to check when the government is acting ultra vires the Constitution. 

It was easy for King Gyanendra to transfer the power that he had been exercising illegitimately for quite some time—he only had to transfer it to democratic forces, which were there. He could afford the luxury of failing for a while. Many Latin American and African nations have undergone dictatorships, usually by military leaders, either as the head of a junta or as unelected president by 'pronunciemento', but there are rarely history of these people coming into terms with the alternative forces that were available. It has happened in Nepal, because the monarchy had that tradition of sooner or later conceding to the popular forces, no matter how ambitious the monarchs had been at times. Unfortunately, the SPA government does not have that choice. Increasingly, the public appears against executive monarchy, and the alternative power base that the SPA government has is not only authoritarian, but also undependable, wild and bereft of any democratic commitment. As such, the government must succeed, without developing any intoxication for illegitimate power. 

If the government fails, it will finish itself, the monarch and the national army as well as the prospect of democracy for a very long time. While the rule of law must always be maintained to keep the momentum against anarchic forces; the government should stop humiliating the national army, which remains the strongest bullwork protecting democrats in the country. In fact when kings, autocrats, or despots are deposed and the people rejoice, it has not always meant democracy is assured. In modern history, people's revolutions have produced tyrannies far more monstrous than the ones they have pulled down. The American Revolution produced a constitutional republic in 1789. Yet, that same year, a French Revolution hailed by Jefferson, ended in a reign of terror, followed by Napoleon's dictatorship, and decades of European wars. There is also an unbroken history of despotism and domination— by Ottoman Turks, then by Western imperial powers. 

It is time to remember that Benito Mussolini in Italy and Adolf Hitler in Germany gained power within the framework of democratic politics, and once in power, they gradually eroded constitutional restraints. Mussolini came to power after the "March on Rome" in 1922, and was appointed Prime Minister by King Victor Emmanuel. In Germany, the detested Kaiser Wilhelm had abdicated in 1918. Democracy had a good beginning, but just fifteen years later, Adolf Hitler took over with the intention of never giving up power. In the recent past, the dethroning of many pro-Western monarchs in the Middle East produced despots such as Nasser, Ghadafi, Saddam, and the Ayatollah Khomeini. It is for the democrats to make sure that democratic methods are sustained, whether in war or in peace. 

The most important among the contentious issues is the formation of a constituent assembly to draft a new constitution as called by the Maoists. From the 1789 French Constituent Assembly to 1992 Democratic Constitutional Congress of Peru's Alberto Fujimori, the world has seen dozens of constituent assemblies. However, it is hard to find a perfect example of a constituent assembly, or a perfect written constitution ever produced by a constituent assembly. 

South Africa's Constitution of 1996 is considered comparatively better. It is because of the result of remarkably detailed and inclusive negotiations done by its constituent assembly- with the support of a charismatic Nelson Mandela. In all, it took seven years, from 1989 to 1996, to complete the final document. Almost five years elapsed between the first meeting between African National Congress and Prime Minister P W Botha in 1989 and the agreement on an interim constitution and the first non-racial elections in 1994. Through these years, outbreaks of violence threatened the process. But the leadership of Mandela and his pragmatic approach (of working with the same apartheid regime that his movement pulled down) helped the process considerably. The 'historical' enemies in South Africa succeeded in negotiating a peaceful transition from apartheid to democracy exactly because they were prepared to accept the inherent capacity for goodness in the other. Mandela wanted South Africans never to give up on the belief in goodness, and to continue to cherish that faith in human beings as a cornerstone of their democracy. He was largely successful. 

This is not always possible, especially when there is a communist or a totalitarian movement. It would be a folly to ever ignore the fact that the Maoist movement was launched to destroy the parliamentary system and eliminate bourgeois forces including the monarch. It was launched at that point of time when the King had a demonstrably good performance as a constitutional monarch, and the elected governments had started to deliver (although they too were learning by doing). The role of the political parties in the handling of this movement has always been questionable. They have been mean; power-hungry, corrupt and unpredictable. Except the King of Nepal, it is hard to get any party or politician in this country who had a policy about Maoists, and had ever condemned violence the way it deserved. Even now they are basically capitalizing on the hatred against the king, and the revolutionary fervor being exchanged with the Maoists is demobilizing many important values that the country needs to protect for its reformative moves. The SPA alliance has already shown that old habits die hard. 

Part of Russia's history is repeating in Nepal today. Throughout the 19th century, Russian reformers demanded the setting up of a democratically elected Constituent Assembly. After King (Czar) Nicholas II abdicated on 1st March, 1917, the new provisional government announced it would introduce a Constituent Assembly. A total of 703 candidates were elected to the Constituent Assembly in November, 1917. This included socialist revolutionaries, Bolsheviks, Mensheviks, and Constitutional Democratic Party. The position of the Bolshevik was not better. They were bitterly disappointed with the result as they had hoped it would legitimize what they proclaimed as the October Revolution. 

Thus, when the constituent assembly rejected Vladimir Lenin's Bolshevik programs, he announced its dissolution asserting that the October revolution stood higher than the formal rights of the constituent assembly, and its attempt to disregard the class struggle and civil war would be a betrayal of the proletariat's cause, and the adoption of the bourgeois standpoint. Soon, afterwards, all opposition political groups were banned in Russia, and the state power was captured by Bolsheviks, with the support of the arms and ammunitions of the Czars. The October revolution was not the revolution of the Russian masses; it was the forceful takeover of the interim regime by the Bolsheviks. 

Nepal is at present at that stage. What is going on, by itself, is not unfortunate. What is unfortunate is the failure to understand the scenario. The question, of course, is not simply the constituent assembly and the constitutional framework that will be ultimately adopted, but whether or not that framework is a viable instrument from which the country can emerge and persist as an independent, nationalist and democratic society. 

A strong commitment to the rule of law is necessary to overcome this challenge. Democracy also needs to find ways of growing and building advantages rather than just eliminating disadvantages. It is not just a matter of being better at what the SPA government does – it's a matter of being different at what they do. The problem with SPA is that it is full of doubt, while those who have just returned from the jungles are always so certain of themselves. 

Bipin Adhikari, Ph.D., is a lawyer. He specializes in constitutional law, human rights, legal reforms and democratization process. He can be reached at