Nepali Times Asian Paints
SAMBHU THAPA
Guest Column
End 'constitutional adventurism'


SAMBHU THAPA


In the past two weeks we have seen desperate attempts by the royal regime to harshly put down a people power uprising for the restoration of full-fledged democracy and peace. The brutality with which the state has tried to crush it shows how shaky and brittle the edifice of state has now become.

There are some decisions that would widen the cracks in the system and even bring the entire superstructure crashing down. One is a declaration of a state of emergency which may well be the last thing this government will ever do. Another is to announce general elections under the chairmanship of the king which will sink Nepal into deeper anarchy and bloodshed.

The pivotal problem is not to hold elections now but to get both the king and the Maoists to renounce violence and respect the people\'s sovereignty. The safest, least costly way to do that is to reinstate the dissolved house to re-establish a constitutional and legitimate government and entice the Maoists into the mainstream. The comrades are opposed to reinstatement but the parliament could carry out amendments to the constitution to incorporate a constituent assembly provision.

In hindsight, it is now clear that ever since he was thrust on the throne after the royal massacre King Gyanendra has harboured ambitions to wield absolute power. In this, he takes after his father who overthrew the first democratically elected government in 1960 and imposed a one-party system that lasted 30 years.

The first putsch came on 4 October 2002 and the king justified this saying the Nepali crown inherently enjoys sovereign and extra- constitutional privileges and state prerogatives since time immemorial and these are safeguarded in the 1990 constitution. He made a similar claim on 1 February 2005 when he completed his takeover. (A former Attorney General who once saluted the royal coup at an international conference even argued after being appointed justice to the Supreme Court that since His Majesty is a Hindu monarch he is not within the purview of the constitution!)

These claims have since been unambiguously rejected by the unanimous decision of five judges comprising the special bench of the Supreme Court on 13 February while determining the constitutionality of the Royal Commission on Corruption Control. The RCCC and its lawyers argued that the decision and order of the king cannot be questioned and challenged before the court. But the court ruled that such a claim is contrary to the preamble and provisions of the 1990 constitution and declared that the sovereign power is inherently vested with the Nepali people.

And therein lays the solution to Nepal\'s crisis: the acceptance by the king that sovereignty rests with the people. Nepal may be the only country in the world where an entire structure of state hangs by the slender thread of a single article in the constitution for the past four years: Article 127. The continued arbitrary assumption of power by the king even after the verdict of the apex court clearly violates the constitution.

The other blatant violation has been the barrage of over 80 ordinances promulgated since October 2002. Instead of following the constitutional provision that ordinances can be issued by the king on the recommendation of the council of ministers only to meet immediate legislative needs when both houses of parliament are not in session, the king has been amending and repealing many acts passed by parliament to consolidate his position.

This is a very precarious situation and is a direct result of the king\'s constitutional adventurism. It is already getting too late for him to yield to the popular will of the people and to respect the constitution that guarantees a role for him.

Sambhu Thapa is the president of the Nepal Bar Association. This article was adapted from a presentation he made at a seminar on Nepal on 18 April in Geneva organised by the Swiss Department of Foreign Affairs.



LATEST ISSUE
638
(11 JAN 2013 - 17 JAN 2013)


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