Nepali Times
Guest Column
Beyond Article 127


The justices of the Supreme Court did not find fault with Prime Minister Sher Bahadur Deuba's decision to dissolve parliament and local government bodies.

But the court's legitimacy comes from the people. That is why the legal debate about whether the prime minister used his authority with malicious intention may have ended with the court verdict, but it is just beginning at the people's level.

Theoretically, the November elections will test the prime minister's decision. But because we are still under a state of emergency and the Maoist problem remains unresolved, many doubt if the elections will in fact take place and if it does whether they will be free and fair.

And people are genuinely concerned about what would happen if the elections are disrupted by the Maoists, and who would benefit from such a situation. Which force would try to fish in the muddy waters?

It is clear that a no-poll situation in November will benefit those who have never had much affection for the present constitution and multiparty democracy. That explains the speculation in various newspapers, including this one, (see editorial "Article 127", #107) regarding Article 127. Because a democracy is a system that allows the discussion of alternatives in situations where one or many constitutional provisions cease to function, it is also not unnatural for us here to discuss the possible ways to ensure that the interests of the people are best served.
There have been no obstacles to the implementation of the constitution in the past 12 years, so there has been no reason for the king to invoke Article 127. But the constitution's framers must have foreseen the possibility of something like Article 127 being needed. Also what type of "constitutional obstacles" the Article can be used to remove would depend on the nature of the crisis that may cause its operationalisation.

That is because constitutional crises can be of several types: those inherent to the statute itself, or those caused by other factors leading to a stalemate. A possible constitutional crisis is a situation where, say, the prime minister resigns in a situation where we don't have a parliament, or the position is vacated for whatever reason.

However, things are a little different if it is a constitutional crisis caused by the inability of the state to hold elections. This is a constitutional crisis, but not necessarily a constitutional void, or a "constitution-less" situation. The Article itself exists within the framework of the constitution-it is not a provision outside it. In other words, it's not that all the other articles of the constitution are on one side and 127 stands alone on the other. Article 127 is an integral part of the constitution.

The Constitution rests on the sovereignty of the people, and that is its basic foundation. The people exercise their sovereign rights through elected representatives. That is why the orders exercised under Article 127 should be ones that would re-establish the elected institutions (House of Representatives and the local bodies) and make them operational.

Until elected representatives can be re-elected, the organisations formed through elections should be allowed to function normally. Reaching a constitutional stalemate because we cannot elect representatives in November is not a desirable situation. Such a problem was anticipated, hence Article 127. Any order to remove constitutional obstacles that may result from a no-poll situation should thus seek to achieve the following objectives:

. The monarchy, functioning as guardian and custodian of the constitution needs to seek a mature role within the framework of a constitutional monarchy
. Outline a strategy to end the instability, corruption and insecurity that we have been living through, and
. Enable the people to exercise their sovereignty through elected representatives (parliament and local bodies) by reinstating them and making them operational.

These goals can be achieved by reinstating the dissolved House of Representatives, extending the term of the defunct local bodies, and forming a small and efficient council of ministers of parties in the House that want a representation in government.

The mandate of such a government should be to intensify the campaign against corruption, work to resolve the Maoist insurgency, formulate and implement necessary action plans to support local-self governance, ensure free and fair elections to parliament and formulate laws that would create the infrastructure needed for economic development.

If parliament is not reinstated, then any order issued under Article 127 would be incomplete because such an order has to compulsorily be tabled in parliament. Because Article 44 defines "parliament" as being composed of His Majesty, the House of Representatives and the National Assembly, we cannot imagine a parliament without the House of Representatives. In effect, any order under 127 in a no-poll scenario would have to include the reinstatement of the House of Representatives simply because it is a part of what we have accepted as parliament.

(Bharat Upreti is an advocate, and senior partner in the Pioneer Law Associates.)

(11 JAN 2013 - 17 JAN 2013)