Nepali Times
Guest Column
A constitutional crown


The constitution of Nepal is once more in crisis, and in its wake comes the possibility of further chaos and instability. One has to seriously ponder its root cause. Why are the constitutions in some countries in this region stable and functional despite their flaws? And why in others does a constitution eulogised as "one of the best" becomes irrelevant and fails to command support even from its framers?

Twelve years ago, Nepal faced an extraordinary crisis, which was both internal and external in nature. While we were trying to become self-reliant from a security point of view, a neighbour imposed an extraordinary blockade with a declaration to bring Nepal "to its knees in three days". Political leaders of that country were inciting the Nepali people to revolt. These activities disrupted an established constitutional process and aggravated political instability.

The previous constitution could have been made fully democratic through some amendments. But it was completely abrogated and replaced by a new one. This constitution had gone through a rough-and-tumble 12 years. Now, there are indications that forces are active to make this constitution also irrelevant. Unless we identify and resolve the reasons why our constitutions are so crisis-prone, no future constitution, by whatever means it is prepared, will last even a year.

The royal move of 4 October was completely unexpected, and it was a flagrant violation of the constitutional provisions. The king can exercise Article 127 only on advice of the prime minister through Article 35(2). It is quite illogical to expect the prime minister to recommend his own dismissal to the king. Article 27(3) imposes an obligation upon the king to protect and preserve the constitution. It does not allow the exercise of any power above the constitution. Unfortunately, the constitution is put into crisis not only by its enemies, but also by persons entrusted to preserve it.

The constitution is not the cause of the present political crisis, but it has become its victim. The failure of the political leadership, including the king and the leaders of the political parties, are mainly to be blamed for this critical situation.

The king now has absolute authority to decide which way to go. If he has already decided (however unpopular that decision may be) he might be able to gather external as well as internal support for it. And the country would have to give in to the compromises and concessions that would entail. There are definitely forces within the country and outside, which want to fulfil their vested interests by aggravating the conflict between the king and the people.

But the king has not yet expressed his desire to produce an alternative to the prevailing political model as his father, late King Mahendra, had done after a drastic change in 1960. As the king has been in constant dialogue with the prominent leaders of the dissolved parliament, he seems to be in search of the solution within the framework of the present constitution.

It is up to Prime Minister Chand to figure out what the king wants. Having served the crown before, he is capable and honest to render appropriate advice to get us out of the deadlock. He could, for instance, decide on an appropriate date for holding general elections within a constitutionally visualised period of six months from the dates of the royal move of 4 October. The constitutional process can return to normal soon after the election
is completed.

If elections can't be held immediately and the prime minister is convinced that it would not be appropriate to continue a situation without parliament for more than the constitutional limit of six months, he can render a binding recommendation to the king as per Article 35(2) to reinstate the dissolved parliament for the rest of its previous tenure.

Any exercise of power by the king under Article 127 requires the consent and advice of the prime minister and that clause enables him to remove such obstacles. The prime minister, and not the king, will therefore be responsible for the consequences. The parliament and the government accountable to it, are the monarchy's shields. The monarchy commands enormous respect and undisputed allegiance of all sections of Nepalis. The prime minister can fulfil his historic role by making this recommendation.

Besides the king and the army, the other decisive force in Nepal's politics is popular opinion, which is expressed and represented by the political parties through the parliamentary process. It is not logical to expect them to recommend a leader or a program unanimously. Once the house is revived, the process of choosing and removing leadership democratically will be reinstated.

There are two alternative proposals from the political parties: the largest party of the dissolved parliament is demanding the revival of the house and the main opposition wants an all party government. In the absence of parliament, this kind of government may require extra-constitutional interventions by the king to run government. There will be problems when that government needs the legislative support. In the absence of the parliament, no new law can be promulgated, no annual budget can be procured and the question of the accountability of the government also remains uncertain. If the election cannot be held for some years, this kind of all-party will be unworkable.

If the parliament is revived, it will produce a government that will have the necessary mandate, have backing of all legislative functions and all major problems of the country will come under parliamentary purview and its scrutiny and it is possible to do this on advice of the prime minister to the king.

Some constitutions, like in Bangladesh and Sri Lanka, have express provisions for the revival of a dissolved house. As our constitution is very precise in drafting, a reasonable interpretation has to be found. The Supreme Court could not stand in the way if the king acts on the advice of the prime minister. And, it is high time for them to decide.

Twelve years ago, Prime Minister Lokendra Bahadur Chand had helped the king to lead an extraordinary consensus in favour of multiparty democracy. Destiny has put him in an almost identical situation. He could recommend to the king the revival of parliament, bring the democratic process back on track, and help avoid a fatal confrontation between the king and the political parties.

Since King Gyanendra's coronation is expected to be completed soon with full Vedic rituals, the restoration of a fully functional constitutional process by then would only enhance His Majesty's stature. That will be an occasion when a large number of heads of state as well as governments with a world wide media coverage will have an opportunity to see a popular king with a complete democracy.

It is known to all that the Nepali people have pardoned politicians from time to time for committing mistakes considering their utility. The king's dignity would be enhanced if the prime minister helps him with correct advice.
The problem of violence, terrorism and lawlessness in the country will be the challenges for a reinstated parliament and the government accountable to it. What is needed now is the courage, in proportion to the stature of persons, to get rid of compulsions seen and unseen.

(Ganesh Raj Sharma is a senior advocate who served as counsel for Sher Bahadur Deuba during the Supreme Court debate following his ouster. This column is a translated version of the article that appears in Himal Khabarpatrika.)

(11 JAN 2013 - 17 JAN 2013)