The Constitution of Nepal (1990) is a remarkable consensus document. Representatives of the monarch and from all major political parties, including some from the far-left, agreed on the fundamental concepts of a constitutional monarchy and multi-party democracy.

But those of us who welcomed the constitution need to face the reality that the nature of politics today has changed. Whether we like it or not, the constitutional bodies and forces including the parliament and political parties are not any more the dominant institutions that the constitution had visualised. A large, if not major part, of the kingdom functions neither in accordance to the directives of the state, nor under the rule of law. The leaders of all political parties are responsible, to a greater or lesser degree, for ushering in this state of lawlessness, mayhem and bloodshed. Those who occupied the seats of governance and power must take the major share of the blame.

In the seven months that the state of emergency has been in force, several districts have been rid of the reign of terror under the 'people's governments'. Frontal attacks on the security forces have been, in most cases, repulsed with telling losses inflicted upon the aggressors. Terrorists are being pursued and subdued, extortion and threats have been reduced in most parts of the country. The people have experienced some measure of relief, and a silver lining is beginning to appear as the terrorists retreat.

It is on basis of these positive indications, and backed by strong recommendation from the security forces, that Prime Minister Sher Bahadur Deuba decided to prolong the state of emergency. During times of national crisis, the issue of national security becomes paramount. It overrides even the liberal values of civil rights and free society for which the democrats of Nepali Congress have waged a bitter, long and relentless struggle. Basic common sense is all that is required to understand that for us to be able to exercise our civil rights and liberties we must first end the rule, writ and command of the terrorist forces. But the decision to continuing the on-going pressure on the terrorists got caught up in intra-party politics.

The principal opposition party, the Communist Party of Nepal (UML) categorically opposed the prime minister's proposal for extension. The Nepali Congress passed a resolution asking Deuba to withdraw even the proposal to discuss the issue in parliament. Put in this critical position, the prime minister chose to dissolve the House and seek a new mandate from the electorate. His recommendation to this effect under section 53 (1) of the constitution, was promptly approved, and His Majesty announced dissolution of the House on 22 May.

Certainly, these swift and dramatic developments came as a surprise to many, including those in the party hierarchy. A couple of ministers in the Deuba cabinet expressed surprise and resigned. (See: "Cheques and balances", by Ram Sharan Mahat, #100).

The prime minister's camp, however, feels that with his own party and the main opposition party arrayed against him, a debate on the issue and the inevitable procrastination that followed could have derailed the process of extending emergency rule. And, while it is understandable that the ministers feel aggrieved at not being consulted on this admittedly vital issue, their judgement and reaction should be tempered by the primary concern of whether or not extension of the state of emergency was and is a necessary step to compel the terrorists to out an end to
their violence.

No provision in the constitution directs the prime minister to consult his ministerial colleagues before recommending the dissolution of the House. The Supreme Court is now deliberating on the appeal for the re-instatement of the House. While the main opposition parties, the UML, the RPP and the Sadbhabana Party, have agreed to go to the electorate, about 60 members of the House, including almost half the NC members, have joined the call for reinstatement.

The Nepali Congress, meanwhile, is vertically divided. When the House was dissolved, the disciplinary committee of the party recommended the expulsion of the prime minister from primary membership, subject to final decision of the central committee. This would be a bizarre situation in any democratic country.

The prime minister was left with another critical choice: to go to the electorate to seek approval of his actions as an "independent" candidate, or divide the party in two. A group of "peacemakers" emerged to bring about reconciliation between the two factions. They persuaded the prime minister to appeal to the central committee, seeking a revocation of the disciplinary committee's decision. Party President Girija Prasad Koirala returned from his visit to China two days later and the peacemakers met him within hours. They could not persuade him to even call a meeting of the central committee to discuss Deuba's letter, although, with a clear majority of the committee members being his nominees, he could have been assured of a decision in line with his wishes.

By this time, the Election Commission had announced 19 June as the last date for the renewal of party registration. It then came to Deuba's notice that the central committee had already submitted such a letter to the EC for renewal, but omitted his name from the list of members of the central committee, as per existing rules.
Events moved fast-the prime minister called a meeting of all his supporters to test the strength of this group vis-a-vis that of Koirala's. In the usual pull and push from both sides to attract or detract attendance, about 840 delegates attended the meeting on the first day, and on the second day, the number crossed 900 of the total strength of 1,465 members with voting rights.

The Election Commission will now have to decide which of the two factions-or both-are to be allotted the party flag and the traditional NC election symbol of the tree. The EC could decide to allot the flag to one or both the factions, but the tree symbol cannot be shared. It could take the conservative option of following the specific provisions for determining the validity of the Congress convention or take into account the extraordinary circumstances to opt for a more liberal stance and view the spirit of constitution that unequivocally declares the general body to be the supreme authority to be the supreme authority over and above the president or central committee.

In the safety of Kathmandu, reflecting upon different interpretations of the law and the constitution, however, we are far removed from the concerns and fears of the people in the killing fields of this otherwise peaceful land. Let us hope that their plight will be the basis of the decisions being made.

(Sagar SJB Rana, a law graduate from Oxford University, is President of the Nepali Congress District Committee, Lalitpur and a Maha Samiti member.)