Nepali Times
State Of The State
Constitutional tug-o-war


The government and Maoist negotiating teams are lead by two PhDs. Dr Prakash Chandra Lohani and Dr Babauram Bhattarai will need many more sessions to work towards the compromise. The good doctors must acknowledge the overwhelming public clamour not to let the peace process be derailed.

Every negotiating process entails give-and-take and the two owe it to society to find that middle ground. But whatever they agree on, we all know that there isn't much that either of them can do to resolve the two fundamental issues of the seven year old conflict: royal powers and the army's chain of command. These issues can only be decided by people who represent the people. But to our misfortune, the fate of the dissolved parliament continues to hang in the balance.

Hemmed in from the left and the right, the centre simply cannot hold. Things started falling apart four years ago when the rightists first weakened the legitimacy of people's representatives by skilfully manipulating politicians like Bamdev Gautam and Sher Bahadur Deuba. Then, the Maoists destroyed its capacity to handle political crises by intensifying their armed rebellion. They may not have been acting in unison, but the net effect of hardline royalists and extreme leftists was the demolition of all elected institutions.

In retrospect, the process leading to the suspension of democracy was a textbook case of giving the dog a bad name before hanging it from the lamp-post. Many of us in the media and the intelligentsia at that time became unwitting accomplices in the conspiracy of subverting popular sovereignty.

The media was manipulated into exaggerating the political silliness over the Lauda Air jet lease and blowing it out of all proportion. The purported case of corruption in high places was then used as an excuse to prevent parliament from conducting its winter session. Instead of being concerned, we shouted 'good riddance' when premier Girirja Prasad Koirala was humbled by the army brass in the wake of the Holeri debacle in 2000, and then made to bow out of office in disgrace.

His successor Sher Bahadur Deuba launched half-baked land reform, declared a state of emergency, dissolved the lower house of the parliament, refused to extend the term of local government bodies, and then went ahead and bought some Belgian guns with unseemly haste. Had he reflected upon the likely consequences of his hurried actions, he would have probably realised that a section of the royal right was just using him as a ladder.

When King Gyanendra found out he was cultivating a constituency within the army, he was sacked for being "incompetent". But by transgressing the constitution rather than reviving it, the king weakened his own position. Unlike previous Shah kings of Nepali history, King Gyanendra owes his position neither to the natural order of succession nor to the will of an abdicating monarch. His accession to the throne has occurred due to the provisions of Part 6, Article 34, Clause (6) of the 1990 Constitution, the supreme law of the land that was promulgated by his elder brother "in keeping with the desire of the Nepali people" expressed through the "people's movement".

Right in its preamble, the constitution clearly recognises that "the source of sovereign authority of the independent and sovereign Nepal is inherent in the people". In Part 5, Article 27, Clause (3), it unequivocally binds "His Majesty" by definition "to preserve and protect" the constitution.

By repeatedly invoking Article 127 without even once laying the necessary "orders" before the parliament as stipulated by the statute, the sanctity of the preamble of the constitution and the spirit of its Article 27 stands violated. (Lest one forget, no one ever escapes the scrutiny of history, and these lines can be construed as its first draft.)

A breach of the statutes was bad enough. But by raising the issue of constituent assembly at this time, its very existence is being put to the test. The Maoists are insurrectionists, an extra-legal force, hence their views are outside the preview of law. But for all the rest, no matter how high, it's the laws of the land that reign supreme.
Any demand that seeks to abolish the supreme law is actually tantamount to treachery. As an outlaw, Prachanda wants to give himself the right to call for elections to the constituent assembly, but King Gyanendra doesn't have the authority to grant him his wish. If he did it, the king risks losing his own legitimacy in the process.

Even far-reaching amendments to the existing constitution can perhaps be justified as being in consonance with the spirit of preserving and protecting it with "the best interests and welfare of the people of Nepal". But scraping it altogether is legally untenable and morally wrong.

A constituent assembly in the present context will be a forum to debate republicanism (dictatorship of the proletariat) and a 'constructive' (benevolent dictatorship) monarchy. The Nepali people may be caught between the devil and the deep blue sea. Alas, the propensity of the Nepali intelligentsia to rush in where even angels fear to tread has come to the fore once again. We have failed to realise that just as October Fourth didn't solve the problem of 'incompetent' prime ministers, a new constituent assembly isn't likely to resolve the twin challenges of democratising the monarchy and civilising the military. Despite the lessons of history, the privileged elite tends to forget the fact that all short cuts in politics inevitably turn out to be despotic.

The alternative to the slow and messy process of democratic evolution is not a revolution through the ballot box as is being imagined by the votaries of constituent assembly. The process of reformation has to begin from within. A reinstatement of the lower house could be the first step towards democratic restoration. Until that happens, we have to sit back and let the Maoist and royalist PhDs go through the motions of talking. They are the totalitarian and authoritarian faces of the same coin.

(11 JAN 2013 - 17 JAN 2013)