May 26, 2006

With the domination of extreme voices in the street, silent majority finds itself in mental turmoil

By KESHAB POUDEL

Some claim declaration made by the parliament is equivalent to Magna Carta and others claim it as a revolutionary jurisprudence announced by the parliament in accordance with the wishes of the people, but the country’s silent majority is yet to express their views.

Parliament : Assumes sovereignty

After the announcement by the parliament, the declaration has already started to be executed as it has been published in the official Gazette.  In accordance with the declaration, the name of government and army has changed and many others are in the process of changing. Raj Parishad has been dissolved and so have other services in the Royal Palace . The serious question now is how to make it a part of law and constitution.

Citing the people power, proponents of the charter declaration are accusing the persons, who question the legitimacy of the declaration, as regressive and reactionary.  Whatever they claim, finally Nepalese have been landed at the destination of uncertainty and a new phase of political instability.

“This is a historic document. Since the declaration was made under the demand of agitating people, the document is itself as a constitution,” said Laxman Prasad Aryal, former justice and member of drafting commission of Constitution of Kingdom of Nepal 1990. “What people in the street say is the constitution of Nepal .”

Some others, too, back Aryal’s argument. “The declaration is now a constitution of Nepal and no one can challenge the declaration anywhere,” said former law minister Nilamber Acharya, who headed a cabinet committee, which finalized the present constitution. “The people who are questioning the legality and legitimacy of declaration are supporters of regressive forces,” said Acharya, former member of pro-Russian Communist party.

Other lawyers argue that it can still be incorporated in the constitution through the regular process. “Declaration of parliament is a fait accompli. However, to cloth the declaration with legal validity, the parliament should start amending the constitution under the article 116 of the amending procedure of Constitution of Kingdom of Nepal 1990.  None of the declaration has infringed fundamental tenets of the constitution. The supremacy of the parliament is in dilatory form, which cannot be given constitutional norm in a country where there is democratic and written constitution. The constitution is supreme whereas the organs of the state are creatures of the constitution,” said an eminent constitutional lawyer.

Demonstrators : Demanding people's supermacy

As a matter of fact, the declaration concerning supremacy of the parliament has been made to proclaim the supremacy of the people, which the constitution enshrine and which has recently been affirmed by Supreme Court decision on Royal Commission for Corruption Control. This sovereign power and supremacy of the people, unfortunately, were impinged by the unnecessary acts of King Gyanendra following the dismissal of elected government back in October 4, 2002 and subsequent actions following that.

“By saying parliament supreme, members of parliament want to reaffirm the supremacy of the people. As they duly represent the people, they are supreme to other organs of the state, not the constitution,” said the lawyer. “It looks as if parliament has acted in anger rather than with reason. Instead of reaffirming the supremacy of the people, they mistakenly declared themselves supreme, which may be Freudian slip of tongue.”

So far as aspects of the declaration are concerned, they could very well be embodied in the constitution through the process of amendment as none of the declaration contravenes the basic strictures of the constitution. This embodiment, through the process of amendment, is very necessary since declaration may be challenged as unconstitutional in the Supreme Court - the court is obliged to determine the constitutionality of the declaration in view of the Article 88.1 of the constitution.

It is the reserve power bestowed to any citizen to move a writ petition in the Supreme Court challenging any unconstitutional act or declaration. Constitution is the embodiment of people’s sovereign power against which no act or declaration can exist.

Supreme Court : Stole interpreter of constitution

Whether to change the name of army, change the name of government, dissolve Raj Parishad, remove royal palace military secretariat, remove Security Council, remove privileges of the King, or take up the right to make laws regarding royal succession, all these can be done through amendment of the constitution of Kingdom of Nepal 1990.

According to article 116, everything can be amended except the spirit of the preamble of the constitution. All these declarations are not the salient features of the constitution. The declaration, too, admits that people are sovereign and supreme and no act against the people’s will can stand.

Outburst of Anger

This is an outburst of anger against actions of various monarchs who twisted the constitution for their gains since 1953. Various kings have stepped into the active politics when the people became weaker and divided. This tendency widens the distrust and mistrust. “King Tribhuwan declared himself sovereign in 1953 limiting the role of judiciary. King Mahendra declared himself supreme through coup d’etat against the constitution of 1960. King Birendra disregarded referendum for evolutionary change towards multiparty democracy in 1979 and King Gaynendra’s maneuvers for seeking space for conservation or active role widened the mistrust,” said the constitutional lawyer.

“How come the juxtaposition that the parliament could be supreme? It is nothing but an example of Freudian slip to counter claims of supremacy of monarchy.” Maoist pressure seemed to be other reason to announce the declaration by the parliament. It seems that political leaders are eager to preempt the Maoists declaring almost all demands raised by them.

“Had all Kings followed the constitutional process since 1951, the country would not have seen the present state where there are growing demands to declare Nepal as a republic state,” said Dr. Surya Dhungel, in his article in Nepal . “Political leaders too have shown their capability to lead the agitation but not a capability to smoothly work in transition. Because of all these, we have been repeating similar kinds of mistakes in the process of democratization in the last 57 years.”

Validity of Declaration

In a country where there is written constitution, all the organs of the state including the House of Representative are the creations of the constitution.

People are now saying that the declaration is a part of the constitution. Unless the contents of the declaration are incorporated in the constitution, the court cannot recognize it and it will lack legal binding case.

Declaration has never been a law. Rather, it is a way to make law, to embody its letter and spirit in constitution and law. For example, Magna Carta is a historical document, which heralded the era against the absolute monarchy. However, Magna Carta is not binding and enforceable law. The subsequent law and judgments in England commonly known as Common Law embodied the spirit and principles of Magna Carta.

There are still rooms to incorporate the declaration into the law and constitution. The Supreme Court can interpret it. “The declaration of parliament has historical value as it reflects the aspiration of people. No force can overrule this document,” said CPN-UML general secretary Madhav Kumar Nepal . “If someone tries to hatch conspiracy against this declaration, people will not tolerate them.”  

Although it has already evaded the constitutional and legal process, one of the positive parts of the declaration is that it was not announced by a revolutionary council or a group of military council, but by 205 elected representatives of previous parliament.

There are legal and constitutional ways to incorporate the declaration recently made by the parliament. However powerful it may be, the mandate of people is really a force to reckon with but it must be translated into the law following its due procedure.

Mandate of People

In the last Royal proclamation of the King, the road map of the seven parties was mentioned to be followed. One of the six points of road map of seven parties stated their unequivocal commitment to activate the whole constitution.

Unfortunately, when they reached to the power, political parties ignored their previous commitment and made the declaration saying that any provision of the constitution, which goes contrary to the declaration, shall be null and void.

The legal status of declaration is very confusing and one dares not find similar instance anywhere in the world. No legislature procedure was followed to make it a legal document but in several of its provisions, the declaration demolishes the constitutional title and privileges of the state authorities as well as citizens.

The King has been deprived of certain powers and privileges but ordinary citizens of this country have also been deprived of their fundamental rights and liberties to resist the guidelines of the declaration.

In the pattern of some military or communist takeover, the consequences remain the same – that declarations are as rigorously enforced as fundamental laws of the land.

“One cannot expect due course and process at the time of revolution. One must respect the declaration as a genuine opinion of common people,” said former justice Aryal. “The document consists of mandate of the people. All of us had seen how people violently came out in the street when parliament delayed the announcement for a couple of days. It reflected the people’s aspiration.”

Pressure of the Street

The announcement is a result of the pressure coming from the street. In fact, in the present context, the elites and civil society themselves turned into a mob and mob psychology is emotional and irrational. The persons who are sober and responsible remain silent and nobody is taking notice of silent majority. The voices of reasonable persons cannot be recorded because they did not take part in the street. The silent majority of people in the country is moderate, reconciliatory and sober.

If these trends continue to override the constitution by parliamentary declaration, despotism of parliament in definite term may come out with another declaration unflinching all basic freedom of a citizen.

Can Declaration Be Challenged?

Can a citizen challenge this resolution in the court? Till now any citizen could challenge an act or law or ordinance under the article 88.1 of the Constitution of Kingdom of Nepal 1990. As the mob is against any move to test the legitimacy of declaration, nobody is in a position to dare to challenge it, although some judges have indicated that they will judge the legality of declaration - if someone files a writ petition in the court.

“The court can test the constitutional and legal validity of the declaration of the parliament if writ petition is filed in the court under the article 88.1 of the Constitution of Kingdom of Nepal 1990,” said Justice Anup Raj Sharma.

Constitution is source of all powers of state functionaries as well as citizens. The declaration has eclipsed the constitution declaring that the declaration of parliament supersedes the constitution as well as other laws of the country. It is not a part of legal document but a political document and political document has made the constitution irrelevant.

“When there is a revolution, nobody goes through the constitution. The document consists of mandate of revolution,” said Nilamber Acharya. “The declaration is the constitution now.”

Uncertain Mob

Organized demonstrations are not the real reflections of the whole nation. The mob in the valley has always been unpredictable. When two Nepali Congress workers Bhim Narayan Shrestha and Captain Yagya Bahadur Thapa were executed, no one saw any mob. After winning the elections for dissolved Panchayat, record number of crowd came out to the street to welcome Nani Maiya Dahal. Similarly, the crowd remained silent when King Gyanendra dismissed the elected prime minister Sher Bahadur Deuba’s government in October 4, 2002 .

The crowd in the valley gave impression to King Gyanendra, who spent about eight hours in the street waving to the crowd in September, that they supported his move. What late Ganesh Man Singh, supreme leader of popular uprising of 1990, termed the people of Kathmandu is derogatory but it seems to be still valid. Late Singh who was named as father of democracy after successful agitation, compared the people of the valley as sheep when his son and wife were badly defeated in the general elections.

Following the announcement of declaration, the charter declaration of the parliament has started a debate all over the country about its legal and constitutional validity. According to the proponents of the charter declaration, all the people are under the declaration including the King and people.

“All are under the constitution; constitution is under declaration and parliament is above the declaration. This is a revolutionary jurisprudence,” said a former attorney general.

Whatever the leaders of agitation said, silent majority were not shouting slogans during the street agitation and it is not their character to do so. But they consist the majority of the nation. In the present situation, they are silent but they have to be given utmost serious attention.

Let them declare anything for their political survival, but the hard realities of the country are not going to be changed by such declaration.