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Dissolution and Democracy in Nepal

By Kailali

The drama leading to, and following, the dissolution of the House of Representatives on 22 May 2002 was an unfolding tragicomedy of party political and personal dissolution as well. It brought to mind the passage in “Alice in Wonderland” where the pompous old man expresses surprise at Alice’s ability to see clearly that there is nothing, when he himself is unable to see anything at all, with any degree of clarity, at any time! The old man obviously has much company here.

A senior advocate, for instance, is said to have stated at a “meeting of intellectuals representing  various spheres of society” that what he called “the independent decision” of the Prime Minister to dissolve the House of Representatives was against the Constitution and democracy. This legal luminary added misinformation to misinterpretation by adding that Article 53(4) requires the Prime Minister to seek Cabinet approval before recommending dissolution of the House to the King, and this he had not done.  The last point first. The Prime Minister had in fact consulted his Cabinet before recommending dissolution to the King. This is further proved by the fact that all but four of them have stuck by him thereafter (and in his subsequent recommendation to extend the Emergency for another three months starting 27 May 2002) despite instructions by the Nepali Congress Party political apparatus to resign from the Cabinet, or face expulsion like the Premier.

With regard to the misinterpretation in must be stated that Article 53(4) is about as concise as can be. It states that “His Majesty may dismiss the House of Representatives on the recommendation of the Prime Minister. His Majesty shall, when so dismissing the House of Representatives, specify a date, to be within six months, for new elections to the House of Representatives.” Also, while the Prime Minister did in fact have the political acumen to consult his Cabinet, nothing in the Constitution requires specifically that he get Cabinet approval on the matter. The system of parliamentary democracy in Nepal follows the British and Indian models, and the Prime Minister is the Head of Government rather than a mere senior among equals in his Cabinet. It is clearly stated in Articles 36 and 37 of the Constitution that members of the Council of Ministers are appointed or dismissed by His Majesty “upon the recommendation of the Prime Minister.”

In parliamentary democracy it is the prerogative of the Prime Minister to seek dissolution of the elected chamber before its full term has expired, and to seek fresh general elections, and, except in the most exceptional cases, the constitutional monarch is expected to agree. It is the accepted practice that the Prime Minister will seek such a dissolution at his own convenience, and not at the convenience of his political opponents. If the Prime Minister has made a bad judgement as to the appropriateness and timing of the dissolution, then it is best for democracy that this case be taken to the people in fresh general elections. It is very patronizing, in the Brahmanic mold of paternalism, to seek court intervention with a view to denying to the people the right to punish or to reward the Prime Minister for his act of political judgement (or misjudgement). It is worse, and bordering on political dishonesty, to argue that the people are not quite ready to give their verdict at the polls, because of lack of security, or because of the poor state of national finances.. This attitude, in the light of reluctance to give to Government the support it needs to fight  the insurgency, might have led later to moves to extend the life of parliament beyond its term, thus allowing the politicos to continue with representational  privileges in Kathmandu-based comfort!

It was a very sad commentary on the lack of maturity and confidence of the political parties that in 1994 they preferred to go to the law courts, rather than to go to the people, when the late CPN-UML Prime Minister Man Mohan Adhikari sought dissolution of parliament and fresh general elections, and when the late King Birendra obliged. The subsequent intervention by the Supreme Court, when it set aside the dissolution, will be long debated for its merits and demerits, but its judgement set in motion a chain of very negative precedents and developments. There was the obviously very bad precedent of interjecting legal mediation in matters that are basically political. These days even individual citizens outside parliament think nothing of petitioning the Supreme Court to challenge dissolutions and fresh elections that have been recommended by the Prime Minister and acceded to by the King in his constitutional role as the King-in-Parliament! The 1994 Supreme Court judgement has also had the effect of further weakening the position of the Prime Minister by severely diluting one of his most fundamental constitutional prerogatives. It has also bred political irresponsibility on the part of political parties and politicians, and armchair ‘intellectuals’, by encouraging them to take to the courts that which belongs to the political field of parliamentary democracy, of Parliament and the King-in-Parliament. It is neither natural nor necessary for judges to be involved in what are quintessentially matters of political judgement (or misjudgement) in parliamentary democracy. In any case, it is best that judges not be drawn into the role of political headmasters, and political referees. Except in clear and deliberate cases of breaches of the law, it is best for democracy that judges leave the discretion, the mistakes and adjustments, of the political processes of parliamentary democracy to the political sphere itself.

The dangers of judicial intervention in essentially political matters is highlighted by the rider to the 1994 Supreme Court judgement in which the learned judges apparently said that there should be no dissolution of parliament as long as an alternative government can be formed. This seems to be an observation that goes beyond any literal interpretation of the Constitution, and beyond most norms of parliamentary discretion. Who then decides whether an alternative government is possible? Is the reference to ‘any’ alternative government or to ‘viable’ alternative government?  The 1994 Supreme Court judgement was followed by a circus of four coalition governments that were not only short-lived, but quite dazzling in the  improbable marriages of convenience made (centrists with rightists, followed by communist with one faction of the rightists, followed by another faction of rightists with another faction of the centrists, followed by another faction of the centrists alone). These were the alternative governments facilitated by the 1994 judgement to deny dissolution and elections as requested by the then Prime Minister and accepted by the then King! It is possible to argue that if the 1994 general elections had been held, the people would have given a clear mandate to the CPN-UML; the country would have had a relatively stable government; the Congress Party and the RPP would have benefitted from five years experience as a vigorous opposition; and the country may not have had the Maoist insurgency and terrorism.

There are politicians and ‘intellectuals’ who would like the Courts to intervene once again, and   to micro-manage the parliamentary political process, by supplementing the 1994 judgement by saying that parliament may not be dissolved, and fresh elections may not be called, if the national finances are too strained, or if the security situation is not too comfortable for electioneering. The petitions have already started. A group of lawyers have moved the Supreme Court to nullify the 22 May 2002 dissolution of Parliament (and the general elections called for 13 November 2002) that was recommended by Prime Minister Sher Bahadur Deuba per his constitutional prerogative, and that was duly accepted by King Gyanendra as the constitutional monarch. It seems that this is being supplemented by 61 ex-MPs, largely from the Koirala faction of the Nepali Congress Party,  who have gone to Court to reinstall the House of Representatives. The basic argument in these appeals is that the Prime Minister acted unconstitutionally and with ill-intention, and that the dissolved House is quite capable of doing its work. The patriarchs of the parliamentary past must be turning in their graves at this typical manifestation of political adolescence! These legal ploys are being supplemented by political allies who have raised a hue and cry about how this is not the best time to face the people, given the poor  economy, and problems of security. Some of them have made insinuations against the monarchy, and the security services that are fighting (and dying) to contain and eliminate terrorism. In the tradition of politicians on a possible losing streak, they have begun to question whether the polls will be fair. When will they ever learn!  

This latest tragedy comedy is clearly the result of the factionalism that has become so endemic in the ruling Nepali Congress Party.  Party President Girija Prasad Koirala, and the Central Working Committee that he largely nominated, came close to substituting party rule for parliamentary rule, when he sought to humiliate and to control his political rival Prime Minister Sher Bahadur Deuba, by demanding that he come before them to explain and seek sanction of government policy prior to going to parliament. In Soviet style party rule, the country is effectively run by the Chairman (president) of the party, aided by a compliant Politburo (central working committee), with the so-called prime minister and ministers clearly subordinate to, and implementing, the directives of the Party. In such a system of ‘democratic centralism’ the parliament is subordinate to the Party, and exists to rubber stamp policies decided by the Party Chairman and Politburo. In parliamentary democracy it is the Parliament that is supreme, and the Prime Minister and  Council of Ministers are individually and collectively responsible to Parliament for the exercise of their duties (as also stated in Article 36.4 of the 1990 Constitution). In his seeming attempt to rule by proxy through his control of the organization of the Nepali Congress Party, and in the seeming contempt that he and his central working committee and party disciplinary committee have shown towards the Prime Minister, it might be argued that Girija Prasad Koirala and his party clique had opened themselves to the possibility of proceedings for contempt of parliament under Article 62.7 and 62.8 of the Constitution. It could be that in their campaign against their party colleague and Prime Minister, they came close to committing a breach of the privileges and procedures of parliament.  

These people have the right to try to topple the Prime Minister; but they should have done so via the Congress Parliamentary Party (which consists of Congress party members elected to the House of Representatives), and, if necessary, through votes of no confidence within the House itself. Given the impossible and humiliating situation into which he was being cornered, and in the light of the critical need to fight and to finish off Maoist insurgency and terrorism with sustained vigor, Prime Minister Deuba upheld the dignity of his position and the integrity of Government, and the dignity of Parliament, by exercising his constitutional prerogative to recommend the dissolution of the House of Representatives, and to call for fresh elections. It is the people, not the judges, who should now give their verdict on the matter. What is the alternative? The ruling Nepali Congress Party is so ridden  with factionalism that it has become chronically dysfunctional. Despite winning a clear majority of 113 seats out of a total of 205 seats in the May 1999 parliamentary elections, it relapsed into party factionalism, and produced three prime ministers and governments in as many years. Its Party President toppled his predecessor as Prime Minister in 2000; was himself forced to quit the post for lack of party support in 2001; and in 2002 was trying to toppling his successor as Prime Minister! In this he resurrected the shades of the past circus of coalitions by joining rightist and communist parties in  conjuring up exotic political birds like the so-called Broad Democratic Alliance, which, as one observer put it, was neither popular nor democratic, and was more liaison than alliance!  It has also been observed that this was an exotic bird with painted feathers whose colors would run off at the first monsoon! In any case, many of the members of parliament had ceased to be functionally representative because of their reluctance to commute to, and commune with, their constituents in the field. They were fearful of the Maoist insurgents; but the bosses of the Nepali Congress Party apparatus were curiously reluctant to give to Government the renewal of the emergency powers that it requested to fight and to finish off this terrorist insurgency.

In this worst of all possible worlds, perhaps the least of all possible evils was the dissolution of parliament on 22 June 2002, and the scheduling of fresh general elections for 13 November 2002. The people will be given a chance to pronounce on the sorry performance of the ruling party and its squabbling leaders. The opposition parties will get a chance to seek power through the mandate of the people, rather than through exotic fantasies like the so-called Broad Democratic Alliance. It is encouraging that the major opposition parties like the CPN-UML and the RPP have abandoned their dithering, and have welcomed the challenge of fresh elections, while recognizing that Prime Minister Sher Bahadur Deuba acted within his constitutional prerogatives in seeking dissolution of the House of Representatives and fresh general elections. These elections may give the Nepali Congress Party the incentive to shed its septuagenarian leadership, and dynastic politics, and turn to the younger leaders in its ranks. The dissolution and the elections provide yet another chance to the Maoists to shed their terrorist insurgency, and to join the political mainstream by contesting at the polls. This may be their last chance. There is perhaps even now a silver lining in the clouds!

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