What once a courtier of King Charles II (1630 – 1685) of England wrote on the door of the Royal Bed Chamber remains more or less a fair description of the British constitutional monarchy even after centuries:

“Here lies a great and mighty King;
whose promise none relies on,
Who never said a foolish thing;
Nor ever did a wise one.”

Although it might look a little exaggerated, it is historically true that a constitutional monarch or an elected president who practices the British (Palace of Westminster) style of parliamentary democracy evolved over the last four centuries cannot do any wrong because they are supposed to act only on the advise of their government—particularly the prime minister. As such, he or she can have no conscience, as everything is in control of the prime minister elected by the House of Representatives.

If the constitutional doctrine of ministerial responsibility, which is a major characteristic of the British parliamentary system means anything at all, these constitutional heads would be bound even to sign their own death warrants, if they were presented to them for signature by their own elected Prime Minister (enjoying the confidence of the House). This is the spirit on which the erstwhile Constitution of the Kingdom of Nepal 1990 was erected. This is the spirit on which a presidential form in the parliamentary system is usually created.

Nepal too has a president now. Almost two months after the monarchy was abolished and Nepal was declared a republic, the members at the Constituent Assembly voted Ram Baran Yadav, a non-practising physician and Nepali Congress leader, as Nepal’s first ever President. He is expected to be in the shoes of a constitutional monarch. Similarly, the Assembly also elected Parmananda Jha, a former judge and a later associate of the Madhesi Janadhikar Forum, as the Vice-President of the country. When the President is unable to discharge his functions owing to absence, illness or any other cause, the Vice-President represents him as per the Constitution.

According to the Constitution, both the President and Vice-President are supposed to exercise authority and dignity without exercising real powers. At the face of the Maoists, who have emerged as the largest party in the Constituent Assembly, and are supposed to lead the new coalition government with the help of the fringe groups, the ad hoc coalition of the three other parties in the Assembly was determined to elect these non-Maoist office bearers as uneasy bed partner for the post of Prime Minister.

The political intrigues that were observed in this exercise were enough to give the impression that the (constitutional) President was being perceived as the countervailing power against the Maoist Prime Minister. These perceptions were not only demeaning to the authority and dignity of the new President and Vice-President, but also less than straightforward. In the maneuverings that were followed, there was a clear indication that the power of the (constitutional) President might be manipulated against the decisions of the (Maoist-led) government—if the government decides what the President thinks is not acceptable to him. This perception necessarily pits the President against the Prime Minister (and his cabinet).

Unfortunately, some provisions in the Fourth and Fifth Amendments to the Constitution, which provide for the role of the President, lead the nation towards the same direction. These Amendments were drafted, tabled in the House and passed quickly, without even stating in all-encompassing terms that the President is bound to act in accordance with the advice of the Prime Minister in all cases. There is definitely scope for conflicting positions.

Furthermore, the Interim Constitution has no clarity as to whether the system being applied is a prime ministerial one that was in vogue in Nepal under the 1990 Constitution. This allowed the Prime Minister the status of primus inter pares, although the cabinet government assumed a collective leadership of ministers. Many provisions of the Interim Constitution, laying down clear emphasis on consensus as the basis of decision making, give the impression that the Prime Minister is all but subservient to the (coalition) cabinet.
The argument here is not that the function to be exercised by the President on the advice of the Prime Minister is just formal or mechanical. The President must be persuaded to get something done and on occasions he may do the persuading at his own initiation. This definitely falls within his legitimate powers. It has indeed been the tradition in this country that the Prime Minister consults the head of the state informally so that he may make his views known to the government without rejecting or suspending action on the formal advice given to him. The head of the state can provide all his comments on any proposed course of action and ask the Prime Minister, if necessary, to reconcile the matter.

It is only in the last resort that the President should accept the final advice of the Prime Minister. In the ultimate sense, the Prime Minister has the right to have his way no matter what the President thinks about it. As such, for every mistake that the President commits the Prime Minister or his government is responsible, not the President who did it at their behest.

Building presidency at the face of such constitutional inconsistencies is going to be difficult for sure. In a parliamentary democracy, where the head of the state is to be elected as the symbol of national unity, it is not usually the trend to provide for either the institution of popular election, or their elections from the same house and through the same procedures that are normally applied to elect the executive prime minister.

For example, in India, the President is elected by the members of the electoral college consisting of the elected members of both the house of parliament at the national level and the elected members of the legislative assemblies of the states. As far as possible, there is to be uniformity among the states inter se as well as parity between the states as a whole and the union. Such a system in particular makes sure that the president is not a creature of the majority party, and enjoys independence and dignity that his office deserves.

The interim Constitution, a product of many unethical considerations, embodies several constitutional machinations. While the Prime Minister (or his cabinet) has every right to exercise the executive power of the nation and maintain that their point of view must be accepted because they represent the majority in the House, the president, who has come to exist through the same procedures, can also claim on the same footing that he too is the executive of the nation for matters assigned to him by the Constitution.

Given these constitutional anomalies, the President can always argue that if he was to be merely a ‘constitutional head’ in a parliamentary set up, why did the Constitution apply the same procedures to appoint the Prime Minister and President? This argument surely holds water. This is not a comment on the wisdom of the person who has been elected to serve as the president, but on the intentions of the unscrupulous people who are set to distort the democratic process in this country for short-term gains—by creating identical power centres.

Unfortunately, the judiciary of the country has been weakened enough not to accept jurisdiction on crucial constitutional issues, and so it would not be able to help settle such issues judicially.

lawyers_inc_nepal@yahoo.com

 Under a compromise brokered between the major parties and the CPN (Maoist), the Constituent Assembly has finally passed the Interim Constitution Fifth Amendment Bill 2008.

The present amendment to the interim constitution tries to revert to some basic notions of the constitutional law compromised by the framers of the constitution last year. Also described as the ‘imported’ constitution, it had given in these basic notions of constitutionalism in order to bring certain objectionable changes in the fundamental law of the land. These changes (including attempts at virtual elimination of the opposition in the House) were not otherwise possible under the erstwhile Constitution of the Kingdom of Nepal 1990.

Some irksome provisions that were to be thrown out from the erstwhile Constitution were the provisions regarding the formation of the simple majority government only on the basis of elections; the constitutional prohibition on granting of Nepali citizenship en masse and without papers of entitlement; the constitutional status of the Supreme Court, the provision as to constitutional monarchy, and withdrawing the basic structure doctrine that permeated through the Constitution as the main governing principle.

A consensus government was created to implement the transition process, and only after implementing most of the interim agenda, that the interim constitution has further been amended to make it an acceptable constitutional document.

The Fifth Amendment Act passed by the Assembly early this week re-enacts the provision of forming the subsequent governments in Nepal on majority basis – a major constitutional departure from the three-year old tradition of moving on the basis of consensus politics. The amendment also re-establishes the prime-ministerial system that had a number of flaws till now. It provides that the president shall be elected by the majority in the Assembly – failing consensus among all parties. It sets provision for the opposition party and makes opposition leader a member of the Constitutional Council – which has the responsibility for important state appointments.

The Amendment Act states that the vice-president, assembly chairman, deputy chairman and the prime minister will be chosen on the basis of political understanding. And if such understanding is not forthcoming, they shall be elected by a simple majority. The amendment states for the first time that the prime minister will have to tender his resignation to the President – ending the confusion on this matter under the Interim Constitution before the present Amendment.

The Act states that the Prime Minister can be removed from office through a simple majority in the Constituent Assembly whereas the President and the Vice-President can only be removed by impeachment only by two thirds majority.

The Amendment Act provides for a special committee for integration and rehabilitation of Maoist combatants and management of their arms within six months. It scraps the appendixes from the Constitution that mentioned the names of the members of the interim parliament. It also provides that the Nepal Army will be made national in character and it will be made inclusive in nature. Similarly, the Assembly has rejected by the two-thirds majority the Nepali Congress proposal to add a constitutional provision for the presence of the leader of the opposition in the National Security Council which oversees national security and defense related matters.

The Madhesi parties which hold over 80 seats in the Assembly of 601 persons, were absent in the Assembly on July 14 meeting. They were able to block the Assembly for around ten times since June 26, when the government introduced the Bill in the House for the first time on the ground that the instrument failed to address their demands, among which was the establishment of an autonomous region of Madhes in the southern lowlands of Nepal. They maintained that the Bill was incomplete and against the spirit of the February 28 agreement creating a fully autonomous Madhes state that would also enjoy the right to self-determination.

To respond to their demands, and without narrowing down the choices before the Assembly, a revised provision in the supplementary bill to article 138 of the Constitution, had stated that Nepal will become a federal democratic country with various autonomous states accepting the desire of the Madhesi people for autonomy and the aspirations of various other communities such as the indigenous and the backward among others. While stating that the country’s sovereignty, unity and integrity will remain sacrosanct, the bill also stated that the Assembly will decide on the number of federal states to be formed, their borders and power-sharing.

As such, the incomplete Constituent Assembly meeting with the absence of the Madhesi parliamentarians belonging to five separate parties numbering 449 out of total 601 members – finally passed the measure. Of the total 449 members present, 442 Assembly members voted for the measure and the rest belonging to the Nepal Workers Peasants’ Party (4), Federal Democratic National Front (2) and Nepah National Party (1) voted against it. Additionally, the 14 amendment proposals on over fifty different constitutional provisions tabled at the House by 13 fringe parties were also rejected.

With the latest constitutional amendment, the obstructions to form a new majoritarian government (removable by simple majority in the Assembly), elect a president, a vice-president and chairman of the Constituent Assembly and to proceed ahead with the drafting of a new constitution have been cleared. Although these changes have been enacted only because the Maoists are about to form the government, and many external stakeholders believe that they need to be contained in the exercise of power, it is good for the country to remain committed to the notions of constitutionalism.

lawyers_inc_nepal@yahoo.com

 President Dr Ram Baran Yadav, who is the first elected head of the state, and bears principal responsibility to uphold the Constitution and abide by it, has asked the Constituent Assembly (acting as the legislature) to elect a new prime minister for the country according to the electoral process specified in Article 38 (2) of the Interim Constitution.

Following the failure of the political parties to forge a consensus government, which Article 38(1) of the Interim Constitution required as the first intended move, President Yadav was quick to advise the assembly to go for this second option. According to the second option, the candidate who is elected through a simple majority of the House is elected to the post — and is entitled to forming a majoritarian government.

The move of the president has certainly surprised many critiques, who have different understanding of how a parliamentary system of government works, or should work in an ideal case. In fact, the Interim Constitution, which was issued after accomplishing a historical coup d’etate on the erstwhile 1990 Constitution, spared no clear guidelines on any matter of constitutional significance to the interim office bearers.

Even the five piecemeal amendments capitulated on this manipulative document — just over a period of seventeen months — left no clue to the President how he should exercise his discretion on the electoral positions of different parties in the newly elected Constituent Assembly, and find a prime minister for the country from within the House.

As a matter of rule, it is the responsibility of the President to find and appoint a prime minister for the country from the Constituent Assembly. He cannot delegate this responsibility to any A, B or C cutting unnecessary procedural corners. In a parliamentary system, this is probably the only executive act, which the President is supposed to do himself, on his own discretion and best judgment, and without any persuasion from the existing government.

For the great faith reposed on him, it is the newly appointed prime minister who in turn will have to prove his new credential before the House by securing a vote of confidence within a specified time. By not doing so, the President not only ignored the applicable constitutional conventions, but also abdicated his constitutional powers to those people who were not entitled to this.

In other words, if the President authentically believed that the Maoists had the fresh electoral mandate — at least more than the rest of the minor parties in the House, Maoist chairman Puspa Kamal Dahal should have been quickly appointed as the prime minister (recognizing that he is a cut above others in this regard). It would have been logical for the President, in such a situation, to ask Dahal either to form a consensus government, or failing it, go for a government with simple majority — in each case giving primacy to his first right to form the government.

Article 55A of the Constitution, which provides for the vote of confidence, would have served as an important institution to check the new prime minister, had he failed to muster necessary support. Apparently, the Maoists were not allowed to negotiate with the minor parties based on their newfound status in the House.

No doubt, both the President and the Maoist leaders were misguided about the applicable constitutional process. The President was advised to ask the CPN (Maoist) chairman — the leader of the largest party in the Constituent Assembly — to form a consensus within seven days to provide a new government to the people.

Later, this one week bizarre timeframe was extended to another three days. The CPN (Maoist) chairman was then advised to go around seeking support of the other minor parties — without first asking the President to appoint him as the Prime Minister before he really started embarking on this process.

There was almost no difference of opinion among the major parties at that point that the CPN (Maoist) should be allowed to lead the new government by virtue of its status as the largest party in the Assembly. That was enough for the Maoist Chairman to make a claim, and the President to appoint him as the Prime Minister. Otherwise, how a party, which lacked simple majority in the House, could go on forming a consensus without getting an opportunity to deal with the rest of the minor parties from the position of power.

Unfortunately, the Maoists, too, instead of going for matured legal advice, were persuaded to question the power of the President to consult lawyers and leaders of the parliamentary parties, and appoint the most feasible person as the next prime minister, on his personal discretion.

Ordinarily, in a parliamentary system which follows the Westminster practices, it is the power of the President to summon the leader of the majority party to form the government as soon as the results of the elections to the House of Representatives are declared. If a particular party is in majority in the new House, the President has no discretion in the matter.

However, if no political party has clear majority in the House, the President can exercise his discretion in such a situation. In other words, it is his responsibility to invite that politician to form the government, who seems to be able to do it with a reasonable prospect of maintaining an administration in office.

It is for the President to think how he can identify that person who might command a majority in the House of all these minority parties that we see in the Constituent Assembly. The President should of course take all relevant considerations into account and be at great pains not only to be constitutionally correct, but make every effort to see that the correctness is likely to be generally recognized. It is not binding for the President to consult the outgoing prime minister, or the Attorney General appointed by him sometime back. In any sense, he must appoint the man or woman who can form a government which will have the confidence of the House within a specified period.

A general election might produce a result allowing of either a single-party minority government or a government formed from any of various combinations of parties under one or other of a number of party leaders. Hung assemblies, with no party enjoying an overall majority, will doubtless continue to recur if the system of proportional representation that has been adopted becomes the rule in the future as well.

This only means that the President has to recognize the first among the minor parties. The leader of the largest party could only be avoided as prime minister if it were clearly demonstrated to the President that a ‘copper-bottomed coalition government’ had been reached between other parties, and that their chosen leader was assured of majority support in the House. When there is no such situation, the President need not be constrained in appointing the leader of the largest party in the Assembly as the prime minister of the country.

This all shows that the proposed August 16 exercise in the Constituent Assembly to elect a new prime minister is going to produce another surprise. The politics of constitutional manipulation continues to be very serious, calculated to make sure that this country never gets back to the path of the rule of law. It appears that Nepal, even after the election of the President is not intended to escape the pattern, which started with the launching of the Mass Movement-II three years before.

(The writer is a constitutional expert)
lawyers_inc_nepal@yahoo.com

 Nepal turned the palace of the besieged king Gyanendra into a museum after ending the Shah dynasty and declaring a republic last month.

As one can guess in any democratic society, the Communist Party of Nepal (Maoist) which has established itself as the largest party in the newly elected Constituent Assembly has claimed, without any interruption from the present leadership and its constituent parties, the position of the prime minister, and a subsequent right to form a new coalition government based on the fresh mandate. Maoist Chairman Puspa Kamal Dahal has reportedly told Prime Minister Girija Prasad Koirala that his party would not keep waiting for the political consensus to evolve if the Nepali Congress puts forth “unnecessary preconditions” to his party before the formation of the post-election government. He is convinced that he can get back to the people, and get things straight the other way round.

As clichéd as it sounds, these so-called ‘unnecessary preconditions’ have proverbially incomprehensive layers within and without. Some layers being expressed in explicit terms are the issues related with the People’s Liberation Army, which is still waiting to be properly managed, and the Young Communist League, the group of former Maoist militias, which still has to learn how to behave with others, but need some sort of accommodation.

The Maoists and others including the Nepali Congress, which is the second- biggest party in the Assembly, also disagree over who should become president and when and how former rebel fighters are to be integrated into the Nepal Army or any other type of national force. The Nepali Congress backs Koirala to be the first president while the Maoists are pressing for any politically insignificant person (because they do not want to give that important position to any member of the recently sidelined major parties).

More important than that, however, is the issue of the Fifth Amendment to the Interim Constitution in order to re-draft certain crucial provisions, because now the (ruthless) Maoists are about to form the government, and certain checks and balances are inevitable in the Constitution to stop them from jumping off in directions that the self-styled ‘Madari’ (snake charmer) cannot possibly control. One such proposal is the two-third majority provision to appoint or call back a prime minister. A simple majority option is being argued by the three main parties for the same reason.

Much easier said than done. Behind these power sharing negotiation are the conditions under the table—which are being aired out to the Maoists through channels external to the constitutional process. Whether they agree to maintain the legacy of Prime Minister Koirala as an instrument of the darker edge of the ongoing revolution will decide whether they get the opportunity to form the government at all. The besieged monarch too had that choice. He decided to accept the solitary confinement in Nagarjun, than the heady, glamorous world that he had presumably been accustomed to.

This political development must link itself with the politics before the promulgation of the Interim Constitution of 2007. By now everybody knows, it was not necessary to part with the 1990 Constitution to bring about changes in the interest of the nation without distorting the basics of a written constitution. But the leaders who took the charge of the Jana Andolan-II did not have the tenderness that was necessary to understand the worth of their own traditions and history. They and their mentors harbored no intentions to grow organically based on Nepal’s own experiment with constitutionalism.

The Interim Constitution was rather invented as a three-barrel gun—each barrel aimed at an important target of the contemporary Nepal: the end of the rule of law; abolition of the monarchy and elimination of the Communist Party of Nepal (Maoist). The Maoists definitely had a crucial role to hit on the first two targets, before becoming the third victim under the same process.

Apparently, the Interim Constitution was not the product of a clean hand coalition. At that time, the Maoists, as true Machiavellian felt that any moral judgment should be secondary to getting, increasing and maintaining power. Entrepreneurs are simply those who understand that there is little difference between obstacle and opportunity and are able to turn both to their advantage. A little wistful, indeed.

In order to achieve its objectives, the Interim Constitution left the most of all essential constitutional rules, conventions and practices which described, regulated or qualified the organization, powers and operations of the government and the relations between citizens and public authorities. What it provided for was the institutional description of the Constitution which included legislature, the government and the courts, the civil service and some constitutional bodies; but most of them were not explained by reference to rules and practices which define their powers and activities in terms of certain constitutional principles.

No need to mention here that the Maoists were also privy to these arrangements, and knew very well that these provisions were not only riddled with constitutional faults and flaws, but were also camouflaged to cover the inherent fault-lines in the said Jana-Andolan-II.

The Maoists accepted the Interim Constitution at that point of time because that served them very well. Similarly, if the government of G P Koirala chose not to tame the Maoists according to the terms of the peace agreements signed with them, it is because this was not in his interest as well. The rule of law has never been a priority to both of them.

It is good that many people know by now where the shoe pinches. But even now it must be explicitly recognized that the present administration is acting in a caretaker capacity until a new government is sworn in. While this country never had statutes pertaining to the powers of caretaker governments, various constitutional conventions have developed over the last few decades which apply to a government which has lost its face.

These conventions are comparable to those in many other democratic states, especially in relation to the requirement for incumbent administrations to maintain the policy status quo (i. e. that which existed prior to the government assuming a caretaker role) and exercise restraint when dealing with matters of political significance. There should be no controversy over the fact that the results of the elections must lead to the changes in the position of power and corresponding responsibilities.

There are crucial constitutional issues that are being discussed, but they are the issues which the government with fresh mandate should take up—definitely under its own leadership. There is a role for consensus for sure, given the fractured electoral mandate, but the Maoists have every right to lead the process as the largest party. Constitutionally, it is not possible to produce a government with a two-third majority to the detriment of the Maoists; and if they do not want any amendment on the Constitution, it is possible without their cooperation even if the ongoing negotiations prolongs for another couple of weeks.

At the face of this reality, a caretaker prime minister and his lost comrades are not supposed to decide what should be on the agenda of the state. This is the position of the constitutional law in black and white. If these preconditions are emphasized to an unnatural extent, the simple applicable logic is that the rules of the game are being changed under another design now because the players who have the entitlement to run the show happen to be Maoists.

To say the least, this move is not only a colorful exercise of power (an issue bound up with incompetency), but also a fraud in the Constitution. This assertion is very ill intentional because the establishment is trying once again to change the effect of the electoral outcome under an amended constitutional cover.

It is a good initiative to convert the Narayanhiti palace into a museum. But it is certainly in the interest of the majority of the people to sustain democracy and the rule of law as a functioning concept, rather than a worn out item to be kept in the museum along with the statue of the besieged monarch. This, with respect, is surely not an over reaction to the new Crown.

lawyers_inc_nepal@yahoo.com

 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.

lawyers_inc_nepal@yahoo.com

 There seems to be no end to the political gridlock in Nepal even after the formation of the Constituent Assembly to draft a new constitution for the country. For many, the Constituent Assembly does not matter. What matters to this group is a guarantee against the Assembly itself — its powers to frame the issues, discuss them through the active participation of the people and take decisions on the basis of the constitutional process internalized by Article 70 of the Constitution. This is madness.

Following an agreement with the tarai parties, which have been successful to disrupt the Assembly proceedings for the fourth time, the three main parties – Communist Party of Nepal (Maoist), Nepali Congress and CPN (UML) – have finally constituted a three-member taskforce to revise the draft of the constitution amendment bill by incorporating the tarai parties’ demands agreed by the government before the April 10 elections.

This refers to the demand of the Madhesi parties to get recognized the entire lowlands of Nepal (east-west plains) as a single province of Madhes — no matter what it entails to the rest of the communities found there. Their demands also included the recognition of this new province as an autonomous region and the inclusion of the Madhesis in the civil service and their group entry into the Nepal Army. This is yet another attempt by the so-called major parties to reduce the significance of the Assembly to a bare minimum.

Although the government had not agreed to amend the constitution to incorporate the issues that were agreed upon at that time; they have now agreed to do it, thereby further constraining the power of the Assembly to restructure the country and decide the features of the new constitution in its own terms. The fact that this issue is being finalized long before the Assembly has even the opportunity to discuss the objective principles of the new constitution cannot go down well with established constituent assembly practices.

The desire of the Madhesi leaders to have the entire plains identified as the unified Madhesi province has some clear reasons. Historically, there had never been a principality called ‘Madhes’ in this country. Many Madhesis want to see the lowlands throughout Nepal as their territory and themselves as its indigenous inhabitants. The rapid increase in their educational status, political awareness, their social and cultural integration with the local communities and the national mainstream, ongoing development of local infrastructure, and the democratization process that started in the country for the last couple of decades have further contributed to their sentiment.

With swelling Madhesi population, and the latest round of generous distribution of the Nepali citizenship to many new comers, including thousands of traders, petty merchants and service sector professionals in the towns and cities, they stand out as an important political factor in the national political dynamics. It is natural, therefore, that they want to assert this fact through the constitutional means. If all the flatlands of Nepal could further be developed as a unified province – with all Tharus and other local indigenous people included within this political fold, it could apparently be a bulwark against what is usually known as the ‘domination’ of the hill and mountain dwellers, especially of the Khas Bahun-Chhetris and Newars in contemporary Nepal. This is an issue of identity as well. Madhesis see this move as an apparent political value addition to their communities.

There are several other considerations though. This country is yet to decide about what type of federalism it is going to adopt through the Assembly. Apparently, there are competing claims — there are issues of equality of all ethnic groups, justice-related considerations and national security requirements. People need to be empowered, but scavenging this country’s sovereign interests to gratify any local constituency would not be a rational choice for anybody. There are some others who think it is not necessary to federalise this country. Rather a process of devolution of power could be considered to each area according to their pressing requirements. They think the Assembly should take position on such issues only after a thorough debate.

Partly related with this concern are two additional elements. The first one is the possibility of imbalance that might result from the federalizing strategies or the devolution process. Second, there is a political question, which is more important, a sense perhaps of the possibility of alienation on the part of many people who feel the government does not take as much notice of them as perhaps it does of the people who can create nuisance value.

Many people of tarai — including the Tharus and other forest dwelling smaller historical communities — have their own claim of the ancestral land. In fact, neither the hills of Nepal, nor its high mountain settlements have ever been recognized as one single province either today, or in the remote history of the land. They have been ethnically as diverse as the low lands of Nepal even though the rulers who ruled them had sometime been one or the other dominant group, coming from one particular ancestral area, and sometime of an ethnically mixed lot.
As far as the low lands are concerned, they were mostly inhabited by the Tharus and other ‘local’ indigenous groups, although they formed the territory of the adjacent hill principality in most parts of the country. For example, the Siraha and Saptari districts, which have been the hub of the Madhesi movement recently, used to be the territory of the Chaudandi principality before their unification into the modern Nepal. This principality was ruled by the Kirants, although the administration was shared with the local Khas and other communities as well.

Whatever the history, the modern Nepal is prepared to devolve power to all constituencies, no matter where they are, and how big or small is their size. It is a shrill question why the issue of ‘one Madhes’ is being insisted on out of proportion. If the hills and mountains co-exist with the rest of Nepal without becoming one province; why the lowlands need such a new status is hard to answer.
Again nobody should try to define autonomy as the right of an ethnic group to minimize the right of the rest of the people. Confusion over the issue stems not so much from whether there exists a right to self-determination, which is included in many international human rights documents, but from the failure of those documents to define exactly who is entitled to claim this right — a group, a people, or a nation — and what exactly the right confers.

Claims to self-determination are frequently in conflict with one another, and no clear standards have been established to distinguish those claims that will be accepted from those that will not. Equally important is respect for territorial integrity and political unity of the constituents of power. States should not encourage the break-up of other states because virtually all states are vulnerable.

However, why to blame Madhesi leaders only? The tragic question is – if the Maoists (and those supporting them from invincible quarters) can decide the fate of monarchy and the question of federalizing the country by amending the existing Constitution and without subjecting them to the Article 70 procedures in the Constituent Assembly, why should there be a double standard in the case of Madhesis? If Madhesis are granted why not Kirants, and if Kirants why not trans-Himalayan people? And if the Maoists could be used for such strategic returns, why not the rest of the communities?

Is it not then important for the whole country to recognize the Constituent Assembly and its procedures and start the deliberative process without attaching any conditions to its decision-making capacity?

Strangely enough, why the ‘loktantrik’ partners of the Maoists, not to mention the most primate among them, should find serious stock losses now when the Madhesis want the right to self-determination – something that they have been demanding for all ethnos? Is democracy still on their agenda? Or, it has disappeared the way the ‘horns’ of the jackals of Nepal disappear once they finish howling everyday after dusk. (Jackals do not have horns. But a small bunch of hair with horn emerges from their forehead when they howl facing downwards). Very funny.
lawyers_inc_nepal@yahoo.com

 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.
lawyers_inc_nepal@yahoo.com

 The Interim Constitution of Nepal 2007, which pledged a Constituent Assembly (CA) to the people, has done so without enumerating its constituent powers whatsoever.

All that this constitution provides for is a guarantee of the basic rights of the Nepali people to participate in a free and impartial election to the CA and frame a constitution for themselves through this organ. The Interim Constitution does not guarantee that the sovereign house will have no limitations in its constituent powers or that it will not be constrained by the decisions of the interim legislature or the interim government on the basis of this constitution or by any executive agreement that it has signed with rebellious groups in the pre-election period.

As such, the guarantee of the basic rights of the Nepali people to frame a new constitution does not imply the unencumbered sovereign capacity of the CA to draft a new constitution of its choice without any limitations on its powers.

The assembly is intended to operate within two concrete a priori formulations. Article 159 declares that (a) Nepal shall be a federal state and (b) a country with a democratic republican setup. The first formulation concerns sharing of sovereign powers between political units, which do not exist till now in the Nepali consciousness, and the second concerns dispensing with the monarchy, which allegedly lost its credibility in the fight against the Maoists.

As to these preconditions, while the nature of the federal state is something still to be worked on, Article 159 requires that the transition to a republic be made at the first meeting of the CA. To give effect to this formulation, the parties in the alliance even dropped the clause requiring a simple parliamentary majority by the third amendment to the Constitution.

It is just by chance that the operation of this provision is tied to Article 75 which ensures that all questions submitted for a decision to the CA, except as otherwise provided in Part 7 of the constitution, must be decided by a majority vote of the members present and voting. Accordingly, the alleged first meeting must also pass a motion to this effect by a working majority in the House in order to abolish the monarchy.

Similarly, the constitutional declaration that Nepal shall be a federal state comes ahead of its due date. Ordinarily, it is the elected delegates of the CA, who have the responsibility of deciding what form of government is best for Nepal, who should make the decision. With this clause inserted into the constitution, the debate has now been carefully shifted to the issue of autonomy, which had not been the demand of the natives of this country so far.

This shows the enormity of the contradictions that the CA finds itself in. A genuine CA by definition can only be convoked under conditions of full democratic liberties of the delegates, permitting the participation of all the parties concerned, and without any external or internal limitations on its constitution making powers.

A CA is not a legislature that is supposed to be governed under express or implied limitations on its constituent powers. It is a self-sufficient source of power from which all specifics of a state are to be derived. As a corollary, it should be able to exert paramount control over the constitution while making the frame of the government and its administration. While the Interim Constitution might have given birth to the CA in the normal course of political development, the assembly can chart out its future ways without any guidance from the parent document and forge ahead with its own terms and conditions. Otherwise, there is no difference between a normal legislature and a CA intending to give a fresh start.

However, the faulty Interim Constitution has outsmarted its architects in two very surprising ways. First, as far as the general rule of the constitution is concerned, the members of the CA must vote on each and every article of the draft constitution in order to pass it; and failing unanimous passage of the motion, at least two-thirds of the total members of the CA must give it a unanimous exit to turn it into the new constitution.

So, even if the first meeting of the assembly, for example, were to abolish the monarchy and establish a republican state by a simple majority, the move cannot in anyway pre-empt the power of the CA members to reintroduce a new motion restoring the monarchy in due time and pass it by a two-thirds majority. There is nothing in the constitution which can restrain this motion; and as long as there are people in the House to table such a motion and to support it by a required strength, the monarch is here to stay. This means that, contrary to popular belief, the king’s fate will remain undecided until the new constitution is promulgated. Same with the declaration of a federal state.

Secondly, the faulty system of proportional representation that the architects of the Interim Constitution introduced with little knowledge of the ensuing structure has already generated a mixed political lot in the assembly. As no party has an outright majority, what we have is a hung CA, and there are many parties in the House which do not share the political platform of the Seven-Party Alliance (which had monopolized the process of drafting the Interim Constitution). The House is compelled to work with these uneasy political partners.

As the constitution does not provide for the dissolution of the assembly on any ground, except when the objective has been accomplished, a hung assembly is bound to work out either a coalition government or a minority government with the support of these backbenchers. The requirement of a two-thirds majority in the constitution making process will force the ruling elite to redefine issues like federalism and monarchy in the overall context of the state’s restructuring. The smaller parties in power will make a lot of difference when major constitutional policies are sorted out in the House.

There are some who have already started an exercise (in futility) to help produce a national government eliminating the prospect of any opposition in the constitution making process. The Seven-Party Alliance is almost an exercise of this type, which has already served its purpose. But it is inconceivable that it can continue any longer in the new scenario. In any case, such a national government has a very poor reputation historically. Whether it is the national government of GP Koirala (2006-08) or of British Prime Ministers Ramsay MacDonald, Stanley Baldwin and Neville Chamberlain (which held office from 1931 until 1940), all have been a liability to the nation. Fortunately, a loyal opposition is going to be prominent in Nepal for the next two years. This opposition is going to make sure that the nation is in safe hands.

Additionally, a coalition government led by a party which has lost its credibility before the majority of the people can be equally destructive to the cause of the nation. Nepal is surely familiar with the hung parliament after 1995. It is perhaps not out of place to mention that even in the 1974 general election in the UK, sitting Prime Minister Edward Heath had refused to resign at first, attempting to build a coalition government despite winning fewer seats than the then opposition Labour Party. So if Prime Minister Koirala is still trying to hang on to his post, it should come as no surprise. But the House itself is going to take offence against such ambitions.

The structural limits on the power of the CA and unauthorized normative or inspirational impositions are going to grow fainter due to the operation of the hung CA. This is good for the country.
lawyers_inc_nepal@yahoo.com

 With the election to the Constituent Assembly accomplished, the focus of political debate in Nepal has at once shifted from the electoral issues to the issues involving formation of a new government according to the fresh mandate. But in the absence of a clear direction under the Constitution, which suffers from many lacunas and caveats, a very constitutional process is about to be handled in an incredibly controversial way.

According to the Interim Constitution, the Constituent Assembly is intended to serve two purposes: first, it has to draft and adopt a new constitution based on popular mandate of the voting adults in the country.

Secondly, it has to bring into being an accountable government to run the country until fresh election under the new Constitution produces a new executive. So, the existing legislature and the executive arm of the government are not to co-exist with the Constituent Assembly designed by the Interim Constitution. As a consequence, the responsibility of the Constituent Assembly is not only regarding the exercise of the constituent power of the people, but also about creating provisions to run the country for the remaining part of the interim period.

This is not always a chosen practise. As an example, in Bolivia which is about to complete the constitution making process, the election to the Constituent Assembly and the timetable for it was announced by Evo Morales, an indigenous leader, who took over as president in January 2006 under the existing Constitution. While both the government and a regular legislature took the normal business of the state, the Constituent Assembly concentrated in the constitution making without being subjected to any real or intangible restraints from any quarter. Its recommendations would need to be approved by a two-thirds majority of the Assembly and then be submitted to a national referendum for its final approval. At least in principle, this arrangement is aimed at making sure that the rule of law prevails, and there is little excuse for any eventuality.

The model of constituent assembly that has been enshrined into the Interim Constitution of Nepal is different. First, it has created a Constituent Assembly which comes with certain prescriptions like federal structure of the state, the abolition of monarchy, and so on, that pre-empts the power of the Constituent Assembly in a very unacceptable way. Secondly, the unicameral house is supposed to be a legislature, as well as the organ creating the interim governing body.

Thirdly, and partly related with the second feature, is the faulty jurisprudence of ‘consensual’ government’ that has been institutionalised by the Interim Constitution to eliminate opposition at a time when the country needs it more than ever before. Consensus is important in constitution making, but a loyal opposition to the executive power is a crucial requirement, when the country is bringing far-reaching changes in the country.

Article 38(1) of the Interim Constitution ordains that the prime minister is to be appointed on the basis of political consensus. There is no provision in it as to who should initiate the process; how it should be done; and whether there are constitutional rules to be complied with. There is simply nobody who has the authority to judge the competing claims of different parties to lead a new government. Political consensus in the formation of government is the rule even if there is a visibly majority party in the House; or there is a possibility of a strong coalition government. The status of a largest party is not recognized by the Constitution. It goes without saying that in terms of the Constitution, the recent eagerness of the CPN (Maoist) to lead or form a new government has no constitutional basis. This novelty in the constitutional thought is hardly understandable.

Additionally, if consensus cannot be reached as above, the prime minister is to be elected by a majority of two-thirds of the members of the Constituent Assembly. Again, although the Council of Ministers is to be formed under the prime minister’s chairmanship, the Council itself is to be the product of political consensus. This means that even if a consensual prime minister is found, his authority to create a cabinet of his choice is not recognized.

In this jurisprudence of consensus, the difference between those who have more popular support, and those who have barely survived, is not constitutionally accepted. So, essentially, a majority prime minister has no majoritarian power, even if that means a clear disregard to the voters, and the fresh mandate they have conferred on the prime minister. This stringent standard penalises a party or a coalition group which commands a majority in the House for its proved electoral strength (instead of recognizing its worth).

This precarious provision of the Interim Constitution comes with another off the wall formulation. For the purpose of this constitution, ‘political consensus’ means the political consensus reached between the seven political parties — Nepali Congress, CPN (UML), Janamorcha Nepal, Nepal Sadbhawana Party (Anandidevi), Nepal Workers and Peasants Party, United Left Front, and CPN (Maoist). Technically, the Constitution does not require the vote of those parties which did not join the 8 November 2006 consensus, or those who have entered the Constituent Assembly either as a new party, or as an independent candidate.

Oddly enough, the Interim Constitution no where states that the incumbent prime minister must give way to the prime minister elected by the Constituent Assembly. In fact, the Constituent Assembly cannot sit by itself if the prime minister does not call it. He must call it first and then resign voluntarily giving way to the new prime minister. In other words, if Prime Minister GP Koirala decides not to resign at his sweet will, there is no other constitutional way out to force him out except through a no-confidence motion. But for that to happen he must be benevolent to call the house. Even if the House is called, the no-confidence motion requires a two-thirds back up, which does not seem to be possible at this stage.

As this Constitution lays down, the Constituent Assembly at its first meeting (as summoned by the prime minister within 21 days after the final results of the election of members have been made public by the Election Commission) is supposed to implement Nepal’s transition to republic. Here too, such a first meeting cannot rightfully move such a resolution without getting the 26 unelected members of the Assembly on board under Article 63(3).

For this to happen, a government with a fresh mandate must be formed first, and it must be allowed sufficient time to find qualified nominees for the purpose of appointment, unless the parties use the power of the outgoing prime minister to give effect to this provision.

Additionally, the formation of the government itself will be questionable without the voting rights of these 26 members first recognized. Even if the ‘consensus’ formula works to find out a way out, irrespective of the legal validity of the move, the Constitution does not allow the space for the appointment of a president to replace the king as the head of the state. It is possible only after the fourth amendment of the Constitution. The Constitution is clear in the prescription that the prime minister will act as the head of the state until the monarchy is not voted out; but it is not clear as to who will fill up the vacuum once they are successful to do it.

Moreover, a unicameral house of 601 people is a very shrill arrangement. An intelligent strategist, who believes in consensual process of decision making, would never create such loud-mouthed machinery. It is impracticable also because the interim Constitution has not provided any mini-legislature within the Constituent Assembly to work on legislative and policy issues so that these jobs are done professionally within such a unit keeping the time of the house free for constitution-making business. It is too much for all 601 assembly men to work in the Constituent Assembly as both the framers of the constitution and as legislators, and in a meaningful way.

Things do not become legal simply because there is consensus. Unfortunately, at that level of simplicity, it just does not work. It is giving the impression that even after housing 601 assemblymen, freshly elected and nominated, the culture of ad hocism is not likely to disappear in Nepal. Once again the possibility of compromising the higher principles of law and constitutionalism in forming the new government has become imminent.

lawyers_inc_nepal@yahoo.com

 Betrayal , as a form of deception or dismissal of prior political commitment, is not uncommon in politics anywhere. However, the fact that Prime Minister G. P. Koirala, with 65 years of active politics, is capable to do it is something that comes not just as a surprise to the activists and voters of Nepali Congress, but also as a shame.

As a reform-oriented centrist party, the Nepali Congress has been on the frontline of politics and democratization since it was established in 1947. From the beginning it enjoys the support of the modest, democratic and non-communist voters of this country. They nurtured this party through decades for its commitment to soft politics and institutions based on Westminster model, the principle of national reconciliation as the strategy of Nepal’s independence and survival, and representative democracy.

Shift in Policies
Now there is a new edition of G. P. Koirala, which has challenged these ideals without allowing discussions – and without any working strategy and national direction. He has taken for granted that what he decides is the decision of the nation.

This is not all. Koirala has also cajoled this country – already deeply wounded for its faith in representative institutions – by upholding that those parties who think differently should not have access to the Parliament, and should have practically no opportunity to contest the constituent assembly elections. He has made sure that people who differ with him within the Congress have no voice in the public. In all these betrayals, and maneuverings to ‘republicanise’ Nepal by hooks or crooks, who knows it more than Prime Minister Koirala himself how outrageously treacherous he has proved to this otherwise proud democracy and a country of profoundly nationalist people. Since he approved the India-initiated 12-point understanding in New Delhi last year, Prime Minister Koirala has ignored the agenda of the Nepali Congress. He has also fully stopped the line of communication with the rank-and-file of the Congress.

Two important Decisions
Recently, Prime Minister Koirala took two important decisions: firstly, he reunited the Nepali Congress Party that had been living with the agonies of vertical split since the last five years, supposedly making it as strong as it was during the last general elections (if not more); and secondly, he changed his party having faith in constitutional monarchy and Westminster model of democracy into a republican party with no sustainable agenda for transformation – finally conceding to the Indian demand that monarchy has already served its purpose, and it must go.

The remarks of Koirala until a few months before about national reconciliation, or the policy of Nepali Congress that pleaded tradition with modernity as the basis to defend democracy and protect national independence, has at once become out of context to him. As a consequence, the party which has been re-united at the leadership level has lost its bases of power at the voters’ level. They still believe in constitutional monarchy, a democratic system based on devolution of power to the local people, and a unitary and strong Nepal. Needless to say, at a time when the Party needs its voters overwhelmingly in the impending constituent assembly elections– especially against extremists and communal elements– Prime Minister Koirala has thrown them into the mire of confusion, lies and extremist propaganda. Strangely enough, he thinks the Congress will come back to power – without its voters, because the goodwill that the Congress has lost will be compensated by the Madheshi Janadhikar Forum – a new outfit supposedly going to be his new partner in the forthcoming elections. Of course, Koirala is building on wrong premises.

Subtleties of Monarchy
Twenty-eight years before, in 1979, when t he Shah of Iran, Mohammed Reza Pahlavi, had fled his country following months of violent protests against his regime, many democrats and liberals thought that the roadblock to democracy has finally been set aside. In fact, just as G. P. Koirala betrayed King Gyanendra and most of the commoners of Nepal, Dr Shapur Bahktiar, the man who Shah Pahlavi had appointed as Prime Minister just one month before he fled, too had disingenuously forced him to leave the country.

The person, who the increasing number of violent clashes between security forces and anti-Shah demonstrators established in power, was Ayatollah Ruholla Khomeini. With the support of the liberals and commies, very much like the support of the imperfect ‘loktantrabadis’ of Nepal to the Maoists, Khomeini finally came to assert control over the course leading to a revolutionary Islamic Council to replace what he called the “illegal government” of Iran. Whatever little democracy the Iranians had during the period of Shah has become a dream for the people since then. After all, democracy is a process not a product, and no Khomeini can ensure it – whether he creates a constitution through his religious decree, or a constituent assembly under the shadow of bloodhounds and separatists.

Communist Invasion
The pressures on Prime Minister Koirala are understandable. He is just like “a parrot in a cage.” But emerging from the difficulties that a country has been plunged into is possible only when the best interest of the nation stands out as the core issue of the national agenda.

When the bases of power are not the voters, whether G. P. Koirala or Babarak Karmal – the Russia nominated President for communist Afghanistan, the effect on the nation is bound to be catastrophic. A leading Afghan Marxist, Karmal lost not only his country but also the prospect of democracy for a long time when he became Russian puppet ruler after the Russian invasion in 1979. The Karmal government, even with the aid of nearly 110,000 Soviet troops, air power and large scale ground offensives was not able to deal with resistance forces. His famed charisma had failed him, for few Afghans wanted to work with the puppet of a foreign power. In fact, Afghans quickly dubbed Karmal as “Shah Shuja the Second,” a reference to an Afghan puppet of the British in the 19th century.

Again, who knows it more than Koirala, how the ‘Lhendups’ of the Kingdom of Sikkim brought ‘gallons’ of democracy in the country and washed away all traces of its nationhood from the history. Unfortunately, the poor Chogyal didn’t even have a standing army to defend its people when the country was being overrun by the renegades and foreign invaders advising him.

Chassis of National Reconciliation
It is against the background of annexation of Sikkim that Late B. P. Koirala had appealed to the nation in 1976 that “in the history of each country, an hour arrives when its people stake their lives to defend the integrity and independence of their motherland. We do feel that such an hour has come in Nepal. .. Our personal safety is of little consequence in the face of the danger threatening the very existence of our country.” Nepali Congress needs to be reminded again: “The people of Nepal have a twofold responsibility – achievement of democracy and defense of national integrity. If, however, we consider one of the two responsibilities as our only task, we would be one sided and commit a grave blunder.” And if we lay stress on the achievement of democracy alone, we may not effectively participate in resolving the national crisis.” For these obvious reasons, late B. P. Koirala had maintained that his neck is joined with the neck of the King; and if one of them is killed, the other will not survive for this very reason. Time might have changed, but not the context. Surprisingly, a few Congressmen have come up, here and there, in recent days, who have been arguing that B. P. has become out of context; and the policy of national reconciliation has already lost its roots. Unfortunately, at that level of simplicity, it just does not work.

Foundations of a centrist party
To remain stronger, every political party has to respond to its constituencies, and try to build on their aspiration. Even a fool knows that republicanism is a Maoist slogan. They mean it; and they have certain use for it. Among the democrats, federalism is the slogan of some disgruntled people, who want more participation in the political system, but have little ideas of how the system might work. It requires serious work and sustainable strategies, which none of them have ever been able to bring before the public. Maoists again have their own strategic threads on it, which must be checked for absurdities. The voters of the Nepali Congress can buy religious freedom (at the most protection of all religions, or equal distance with all of them); but it will not be able to digest ten types of community laws. They might throw their weight on devolution of power to the locals; but they will not accept a situation where ethnic ego runs over the representative institutions, and the indivisibility of the nation. Getting from here to there is a matter of routine planning and building institutions, not heroics, and certainly not the extra-ordinary merry-go-around that Prime Minister Koirala is made to think of in the changes he is implementing.

There should not be any shyness in upholding that the Constitution of 1990 remains the best reflection of the democratic model of the Nepali Congress – historically as well as a modern device. It faced external assaults and internal manipulation because of its strengths and inherent capacity to check abuse of power and protect national interests. It did not get enough opportunity to grow on. The agenda of improvement in it, especially the desires of the ethnic communities for greater identity and participation, and similar other reforms could be brought in for serious discussion and decision making. Yet, structures and procedures alone, without structures that create political stability, guiding principles and values, can not give self-momentum or resilience to a party in the face of assault. It is here that the Nepali Congress has to dispense with populism and stand taller than the rest of the parties which do not have issues to bind all the people together. Like the mortar between the bricks of a building, it is the shared values of an institution which bind the structures together, which make them strong and resilient, and which give them a collective identity greater than the sum of their parts. This alone allows them to develop an autonomous vision and sense of purpose. As a leading party of the country, it is the responsibility of the Nepali Congress not to compromise on the chassis that holds all the people together.

Another crucial issue that the Congress should take to the people is the most urgent task of devising national security strategy. Such a strategy should outline the nature of the threat that confronts this country today explaining priorities, and describing the strategy it needs to adopt to counter these threats. But as all know, this country lives in an increasingly interconnected, complex and often dangerous design. Congress needs to get its starting point right, and it should entail a correct understanding of the problems and threats that Nepal has to be up against. This country is facing all these troubles, political or terroristic, because of its geographical location.The threat is definitely strategic. No one can guarantee that another Maoist War will not break out here again. The approach must be to make it extremely difficult for unconstitutional and proxy forces to carry out their evil deeds while at the same time, be well prepared and ready to deal with the repercussions if such a force does emerge. Of course, safeguarding the sovereignty, independence and territorial integrity of the state is the central pillar of a security policy. But t here can be no greater role, no more important obligation for a government, than the protection and safety of its citizens. What purpose a constituent assembly will serve if the people who have the right to vote do not have the protection from fear. To make sure that the political system of this country works, the Nepali Congress will have to prepare ourselves both operationally and psychologically to deal with threats that may hit the country – including those it cannot even anticipate now.

Euphorias come to an end
But the fear for the Nepalese people is that it is coming to an end with irreparable loss to the nation. A functioning democracy has gone for long. Indeed, what has been marvelously achieved by ‘loktantra’ is the pulling down of a Constitution which for the first time in the history declared that sovereignty of Nepal vests in the Nepalese people; introduced a functioning Westminster model of parliamentary democracy in the country; legalized the operations of the political parties, guaranteed adult franchise and basic human rights to all; ensured the power of the independent judiciary to judge over the issues of constitutionality; and preserved the national interests by means of several constitutional institutions and procedures.

Unfortunately, a well functioning system of the check and balance has been replaced with the concept of the “sovereignty of eight parties” in the framework of the Interim Constitution, which looks like a manifesto of a totalitarian regime. It does not have any concept of participation and inclusiveness. Again the rule by law that those who do not buy its formulations, or claim their right to dissent with the constitutional carnage of the nation, are not to be allowed within the interim mechanisms make farce of what has been defined as the transition regime.

Indeed Prime Minister Koirala, who is already in a very vulnerable age, has left nothing for his posterity. The revolution has really been successful under his leadership. It has turned the country into debris – physical, moral, intellectual, and historical – without giving a ray of hope for the future. Everything old – from the physical infrastructure of this poor country to the most ancient of its national institutions have been pulled down. The demographic change that Koirala and his Company have brought in Nepal by distributing citizenship to all willing Indians still has to show its teeth. While all institutions are in limbo, and civil, judicial and military bureaucracies are out of touch with the Prime Minister, there are decisions after decisions under the pressures of sometime Maoists, and sometime Goits and Jwala Singhs. After these eighteen months, Koirala no longer needs the blessings of either the common people, the seven parties of heroic ambitions, or of the erratic King, who appointed him to right the wrong measures that he had applied to diffuse the crisis.

Conclusion
Democracy needs to be worked out with sustainable political strategies. The problem of institutionalization of democracy and empowerment of the people goes far beyond the issue of the elections to the constituent assembly and drawing up of a new constitution acceptable to all. If some opinion makers think everything will be fine after the ongoing movement achieve these milestones, or the King is dethroned, or the Maoists are mainstreamed and power is handed over to the legitimate representatives of the people, they are not objective, and if the history of the world is any evidence, revolutions have frequently been successful to destroy the status quo, but not always to create and sustain a viable alternative regime. The later issue demands proper planning and clearly thought out strategies. An extremist culture based on violent parameters is, therefore, never helpful.

It is very unlikely for the Nepali Congress to establish itself in terms of its newly acquired rhetorics. It could still be saved if it goes to the people with the policies that they want to hear from them. These policies are no doubt the historical parameters of the Nepali Congress. For that to happen, Prime Minister Koirala has to reestablish the line of communication with the rank and file of his party, and think in terms of what his voters want from him.
[Adhikari is a lawyer and can be reached at human_rights_nepal@yahoo.co.uk ]