By Prof. Surya P. Subedi
Nepal is in a situation of legal and constitutional anarchy today. The King has ruled by decree by using a short article (Article 127) in the constitution which basically provides a way out for a problem of an ad-hoc and technical nature. Its purpose is to remove such difficulties in order to make the system envisaged under the constitution function well rather than enable the King to undermine the spirit of the fundamental law of the land. This article has been used, or rather abused, to issue decrees randomly governing a range of matters including those designed to curtail press freedom and civil liberties. Therefore, an example of a system of government which is making a mockery of democracy and the rule of law can be seen in Nepal under the direct rule of the King today. The King has been reported to have said that `The foreigners will keep saying what they would have to say, but I will keep doing what I have to do’. Well, it would have been good if he had been able to do what the country expected him to do. But even on that count he has failed miserably. He has neither been able to enhance the long term national interest of the country nor the future of the monarchy itself. He has failed to demonstrate any tact, vision and wisdom needed to rule the country in the 21st century and has surrounded himself by the hardliners of the bygonePanchayat era who seem to be morally defeated and intellectually bankrupt.
Nepal embarked on the road to democracy in 1990 and adopted the present constitution, which is, by and large, a democratic one, but it left two things intact: the monarchy and the control of the army by the King. Therefore, it was not, strictly speaking, a constitutional monarchy comparable to the one in the UK or in some other European and Asian countries. Many people have said that the constitutional monarchy envisaged under the constitution was some sort of 70-80 percent constitutional monarchy, the rest being a traditional monarchy.
The constituent assembly may very well open up a Pandora’s Box in the country and create even ethnic and religious tensions of protracted nature in such a precariously balanced diverse society.
However, in a situation like that it would have been possible gradually to establish a truly constitutional monarchy if parliament was able to assert more powers. But in Nepal during the 1990s parliament was the weakest link in the governance of the country. Compared to the other branches of the state, parliament could not assert its powers. Even when the constitution provided that a National Defence Council headed by the Prime Minister could control the army or adapt laws and regulations to govern the army, the Defence Council was, by and large, ineffective. It could not do anything to control the army or to bring the army under parliamentary control. That is why we are in this situation today.
What then is the way forward for the country? The seven-party alliance has done something of quite far reaching significance by persuading the Maoists to accept plurality and the multiparty system of government. That is the significance of the 12-point agreement. The interviews given to the various media by Prachanda, the Maoist leader, in the recent past show some statesmanship and political maturity on his part. He is coming around to accepting that it is not a winnable war they are fighting and they too would be prepared for political accommodation.
There are five different options that different sections of the population of Nepal prefer as a way out of the present political problem in Nepal. The first is an outright revolution to overthrow the monarchy and to tame the feudal class. The power in Nepal is controlled, especially after 1st February 2005, by the feudal class which is backward in its thinking and seems still to live in a 18th and 19th century mindset. It is this backward class that is keeping the country underdeveloped for so long and it is this class that is resisting modernization and democracy in Nepal. There is a significant size of the population, especially the young, who would not compromise on anything less than an outright overthrow of the monarchy. The hardcore of the enlightened young population, especially students and people below 30-35 years of age, see the monarchy as an obstacle to nation building. But the country does not seem ready for an outright revolution and this option may mean much blood-shedding with uncertain outcomes.
Option number two is to revive the old parliament. Now nearly six to seven years have gone past since the last parliamentary elections were held and one of the main political parties within the country, Nepali Congress, is still taking the position, at least in public, that the revival of the old parliament would pave the way out of the political crisis in the country. This option may be a sensible temporary way out but it would not necessarily address the Maoist problem. We have been here before. It will bring back to power those very people who could not resolve the problems of the country when they were in power. The third option championed by the Maoists and supported mainly by another main political party, the UML (United Marxist Leninist), and a large section of the intellectual community in Nepal is holding elections for a constituent assembly to write a new constitution. But if one were to accept the principle of peaceful coexistence of all political forces within the country, and take into account the ground realities in existence today, the constitution that may be written by the constituent assembly may not be very different from the present constitution. This is because people representing all political spectrums, including the monarchy, may get elected and if the majority were to write a constitution in complete disregard for others it would create more problems. The constituent assembly may very well open up a Pandora’s Box in the country and create even ethnic and religious tensions of protracted nature in such a precariously balanced diverse society.
The fourth option that the Maoists and some left-leaning intellectuals have talked about is forming some sort of a parallel government, which would unite the Maoists and the seven-political parties to challenge the King head on. It is an interesting and attractive idea to challenge the autocratic regime through legal and peaceful means. But it too is fraught with its own legal and political problems and it may further compound the problems of the country. Under international law, it would be difficult to recognize a parallel government which does not exercise a meaningful and effective control of a territory within the country and that is not the situation in Nepal at present. The Maoists are basically employing the tactics of `hit and run’ to create terror; they do not exercise any meaningful control of any sizeable part of the country. Those who support the idea of a parallel government hope that if the international community believes that what the King has been doing is unconstitutional and anti-democratic then the international community will come round to supporting this parallel government. But it is difficult to see how the U.S. and U.K. governments would recognize such a parallel government backed or led by the Maoists in Nepal under the current situation.
The fifth option, which I personally have advanced, is amending the present constitution in order to complete the unfinished job of the people’s movement of 1990. In other words, the amendments should be made to accept the notion of parliamentary sovereignty so that the army could be brought under parliamentary control and parliament would have the power to abolish the monarchy by, say, two/thirds or 75 percent majority in both houses of parliament.
In order to implement the fifth option, the country has to go to general elections but there are four preconditions that have to be met prior to holding general election: Number one would be the formation of an all-party caretaker government, if possible. If not, then a caretaker government headed by a neutral figure, perhaps from the legal or judicial sector, who can command respect within the country. That is what happened in Bangladesh when the country was going through a crisis some years ago. A senior figure from the judiciary was appointed as the head of the caretaker government to hold free and fair elections. Number two would be the withdrawal or cancellation of all the ordinances issued by the King since 1st February 2005 which curtail press freedom and other civil liberties.
The third precondition would be to invite the United Nations to monitor and perhaps supervise the elections. The UN is more acceptable and more neutral and has the credibility and perhaps the experience in managing crisis of a similar nature elsewhere. The fourth precondition is some sort of a political compromise or understanding among all political forces within the country that the newly elected parliament would have all the powers of a modern parliament in a democracy, including the powers to abolish the monarchy itself by, say, a two/thirds or 75 percent majority in both houses of parliament and to bring the army under civilian or parliamentary control. Such a new parliament should be given powers to revisit the constitution and make any amendment necessary to implement the notion of parliamentary sovereignty. Such a parliament would have the
mandate to address the issues that the country is facing today. This option would give some sort of space to the King and the Maoists if we are interested in seeing a peaceful and political resolution of the current problems in Nepal.
To conclude, some sort of a political way out is possible under the present constitutional structure of the country
and that is what I have argued in various writings published in the recent past.
Dr. Subedi is the professor of international law at the University of Leeds, UK. This is the excerpts of the presentation by him at the Britain- Nepal Academic Council’s public forum on Nepal: ‘Royal Rule, One Year On,’ which was held recently at the School of Oriental and African Studies, University of London. Shorter version of his presentation also appeared in The Kathmandu Post daily this week. –Ed.
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