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Legalism and the Dissolution Crisis in Nepal

By Kailali

The drama surrounding the 22 May 2002 dissolution of the House of Representatives has moved from the sublime to the ridiculous. It has moved swiftly from the playing fields of parliamentary democracy, with its sometimes fascinating and sometimes flabbergasting twists and turns, to the confining spaces of the law courts with the pervading odor of legalism, in which that incestuous alliance of armchair ‘intellectuals’ and frustrated politicians, and their legal allies, hope to gain in the legal roundabout that which they have already lost in the political swings! An article in the 21-27 June issue of Spotlight magazine ( “Intellectuals: Critical or Cynical” ) asked what exactly was wrong with our intellectuals. It quoted some gems of “intellectual fickleness” and inconsistency, such as the statement by political analyst Krishna Hattechu that: “The order on the dissolution of the House of Representatives was constitutionally correct. But there is a smell of political conspiracy of the palace”. How, the article asked, can a constitutionally correct action be regarded as a conspiracy! It also gives an example of “some prominent lawyers, teachers, judges, and journalists” who wish to have the dissolution order quashed because “The Prime Minister recommended the dissolution  of the House of Representatives at midnight, when everyone was in deep sleep.” It seems that Prime Minister Deuba may not recommend dissolution at midnight!

There have been other gems, or howlers, depending on one’s point of view. Some lawyers and politicians have apparently said to the Supreme Court that the Prime Minister’s request for dissolution was done with ill intention (mala fide) because it was the product of intra-party rivalry. Well, well! They added the non sequiter (irrelevancy) that the dissolved House was quite capable of doing its job! Another hilarious non sequiter was the argument that “parliament was innocent”, and the Prime Minister’s right of dissolution under Article 53(4) of the Constitution is not for punishing backbenchers! One can see why lawmakers consider it a punishment to have to surrender representational privileges in Kathmandu based comfort, and to have to go back to the people for a fresh mandate! A senior advocate seemed to suggest to the Supreme Court that the dissolution was invalid “because it was done in a hurry”! One wonders whether the Court will be dragged into further micro-management of the parliamentary process by having to define what exactly is a dignified pace for dissolution of parliament. Another advocate went  further into the realm of the ridiculous by suggesting to the Court that the dissolution should be quashed because the Constitution was a “meta-political document”. The Constitution is a quintessentially political document that lays down fundamental principles according to which a State is to be governed. If it was “meta-political’, by which is presumably meant above and beyond politics, then it would have no relevance at all! There were also contributions outside the Court. Madhav Kumar Nepal, leader of the CPN-UML, that stands to gain the most from the dissolution and fresh elections, demonstrated his eternally flexible nature by saying that while he welcomes the opportunity that the dissolution provides to fight fresh general elections, he is ready to participate in  coalition government ( shades of the so-called Broad Democratic Alliance with Girija Koirala and Surya Bahadur Thapa? ) if the dissolution is quashed by the Court. ‘Heads I win and tails you lose’!

Legalism may be defined as excessive adherence to law and to formula.. It is a hallmark of our ‘intellectuals’. It has been richly exhibited in their reaction to the 22 May 2002 dissolution. Thus Taranath Ranabhatt,  Speaker of the dissolved House of Representatives, who had alarmed and amused listeners with his “ratatatat” presentation of the June 2001 tragedy at the Royal Palace, has in  June 2002  given his own contribution to the dissolution crisis by opening an alarmingly wide gateway to judicial intervention in parliamentary politics. In his 11 June 2002 submission, he has asked the Supreme Court to reinstate the dissolved House of Representatives, and said that  Article 88(2) of the Constitution gives the Court “extraordinary power” to “issue necessary and appropriate orders” for the settlement of “any constitutional or legal question involved in any dispute of public interest or concern.” If Article 88(2) were too literally applied it would give the Supreme Court carte blanche (unchecked discretionary power) to determine and direct the affairs of the nation! This is almost an abdication of parliamentary authority by the very person who should at all times be acutely conscious of the supremacy of parliament, and of the wisdom of leaving the quintessentially political matters of parliamentary democracy to the political arena of Parliament and the King-in Parliament, and ultimately to the people through free and fair and periodic elections. This seeming abdication of the authority and dignity of parliament, both politically and morally, is reflected in the subsequent action of  Nepali Congress Party leader Girija Prasad Koirala, who, on 14 June 2002 demanded that Prime Minister Sher Bahadur Deuba appeal to the Supreme Court to quash the dissolution of the House of Representatives that he had exercised his constitutional prerogative in requesting, and that the King had accepted. The actions of Ranabhatt, and four times ex-Prime Minister Koirala, give a unique twist to the annals of parliamentary history! The patriarchs of the parliamentary past would be turning in their graves at the thought of a dissolved parliament being recalled by a court of law! They would be stunned by the innovation of a Prime Minister being asked to go to court to reinstate a parliament that was dissolved on his own recommendation!

The capacity for cosmic confusion is not confined to Koirala and Ranabhatt. In an interview to the Kathmandu Post daily on 7 November 2001, Nilambar Acharya, who was Minister of Law and Justice in the 1990 interim Government, and who was convener of the constitutional sub-committee of the Cabinet, is reported to have declared that “Ours is a system of the supremacy of the constitution, not supremacy of parliament.” He added that Nepal was unique in this respect, unlike the case in Britain, where parliament is supreme. What is quite unique is the Brahminical tendency of our ‘intellectuals’ to turn stones into gods, and gurus into godmen! But Acharya is uniquely wrong. In a parliamentary democracy the parliament is functionally supreme because it is a reflection of the sovereignty of the people through periodic and free and fair elections. This supremacy of parliament is strengthened in Nepal through the constitutional monarchy (King-in -Parliament), which adds to parliament the legitimacy that comes from custom and tradition, from history and religious sanction. The Constitution is not supreme! It is the fundamental law of the land, and, like any law, it can be amended by parliament. Those who deify the Constitution should be warned that constitutions can be, and have very often been, abrogated. Nepal itself has had five constitutions in fifty years. This is hardly an example of supremacy of the constitution!

The crisis of the dissolution has once again dragged the judiciary to a dangerous crossroad. This appears to be the fourth time in a decade that the Supreme Court has been asked to overturn the dissolution of parliament. Sometimes the Court has obliged, and sometimes it has not. The result appears to be an augmentation of confusion and controversy. The net effect of judicial activism in this area has been a bizarre twist to the Constitution, because the request for the dissolution of parliament (and fresh general elections) by the Prime Minister is now subject to the approval of the Supreme Court! The role of the constitutional monarch under Article 53(4) has been rendered superfluous and academic! There are friends of the Court  who would argue that it should never have agreed to be drawn into this quintessentially political arena, and that further involvement is sucking it into a political morass that is beyond its legal competence. There are ‘intellectuals’ who would like to drag the court further into micro-management of the parliamentary processes. This is the time for judicial (self) restraint. The judiciary must not rush in where angels fear to tread. The Judges must advise the politicians that the Supreme Court is not the proper place in which to wash their political laundry; it is not the place where politicians should seek relief for political insecurity and immaturity; it is not a place of refuge for politicians who are reluctant to go to the people in free and fair elections. The court must resist attempts to drag it into the role of a political referee, or a political headmaster. There are acute dangers in such judicial activism. To each action there is an equal and opposite reaction. The more the judges enter into the political arena, the more politicians will enter into the judicial arena. The judges are already unhappy that there has been a bill in parliament to empower the CIAA (Commission for the Investigation of the Abuse of Authority) to investigate corruption in the judiciary. They are also aware that the Chief Justice and Judges of the Supreme Court can be removed from office by a vote of two-thirds of the members of the House of Representatives (Article 87.7). The independence of the judiciary depends on judicial (self) restraint that keeps judges away from politics, so that politicians may be kept away from interference in the judiciary. The self-restraint must be mutual! It is also not wise to weaken the constitutional monarchy. The independence of the judiciary, and stability of parliamentary democracy, depend on the stabilizing force of constitutional monarchy in Nepal.

There is another more insidious danger to judicial activism; it could threaten the integrity of the Constitution itself! The 1990 Constitution, prepared by a group headed by former Chief  Justice Biswanath Prasad Upadhyaya, is as good as can be expected; but it is not perfect. The reported statement of former Chief Justice Upadhyaya that “Even though the PM has the prerogative to dissolve the parliament he did not use his conscience at the right moment” is curious. Whether judges should be so prominent in preparing constitutions that they will later have to interpret in court, is still another matter. It could be argued that in the context of Nepal, and of parliamentary democracy, the lawyers went too far in marginalizing the role of constitutional monarchy, while  building for themselves too prominent a role for the judiciary. Article 88(2) is a case in point. All this may be good Brahminical paternalism, but it is poor constitutional statesmanship. Judicial activism in the political arena could result in the 1990 Constitution being seen as an ‘Adalati’ constitution that is of the judges, to be interpreted by judges, for implementation  according to the directives of the judges. Judicial (self) restraint is vital for the integrity of the Constitution!

The nation is at a critical juncture in its political development. It is time for the  reassertion of the principle and practice of the separation of powers between the executive, legislative, and judicial functions of government. It is time for judges to return to the political arena of parliament and the King-in-Parliament, and to the people in fresh general elections, that which is primarily political. In a functioning parliamentary democracy, the question whether to dissolve the parliament before its term, and to seek a fresh mandate from the people, is a quintessentially political matter. It is in this spirit that we should read Article 53(4) of the Constitution that says precisely and very concisely 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.” Period! The Prime Minister should  have the political acumen to consult his political colleagues, but there is nothing to say that he must secure the prior approval of Cabinet, or parliament, in this matter. It is the practice of parliamentary democracy that normally a constitutional monarch will accept the Prime Minister’s request for dissolution of parliament, and fresh general elections. The monarch may refuse the request for dissolution in exceptional cases, but this is a political judgement that he will have to make after serious consideration of the facts. In the final analysis it is the people that will have to decide the matter. They will have to reward or  punish the Prime Minister for his act of political judgement (or misjudgement) in dissolving parliament and going to the polls. There is no functional role here for the law courts. This is a matter of politics, pure and simple!

Parliament has been dissolved by the constitutional monarch at the request of the Prime Minister. This has been done according to the provisions of the Constitution, and according to conventions and practices of parliamentary democracy. The date for elections to the House of Representatives has been announced (13 November 2002). It is now time to go to the people. It is time for the Supreme Court and Election Commission to sweep aside the morass of legalism and escapism into which the  ‘intellectuals’ (and the fractious and frustrated politicians and their legal allies) have dragged the fact of dissolution, and imperative of new elections. The emphasis must now be on equity, defined here as openness, flexibility and fair play.  The emphasis must be on holding free and fair elections under difficult circumstances. Who said that in a parliament democracy elections must only be held in Kathmandu-type comfort?  The emphasis must be on ensuring that the people may choose from the broadest possible range of candidates. The split in the Nepali Congress Party  means that the Election Commission should allow both the (Prime Minister) Sher Bahadur Deuba and (Party President ) Girija Prasad Koirala factions of the party to contest the polls under their own flag and symbols; they could follow Indian examples, and contest as Nepali Congress (Deuba) and Nepali Congress (Girija). The elections will not be complete if either faction is prevented from contesting due to legalisms and legal technicalities. The flag and symbol of the undivided party should be frozen. Let the people decide! May the best side win! 

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