National 3 (Spotlight Weekly)

Constitutional Or Political?

The major parties are advocating a solution that undermines the essence of democracy

By KESHAB POUDEL

From their recent statements, leaders of the major political parties appear to be in a clear mood to urge King Gyanendra to form an all-party interim government and to reinstead the dissolved House of Representatives by exercising Article 127 of the Constitution of Kingdom of Nepal 1990 to hold free and fair elections.

Thanks to the three-day general strike called by the Maoists on the eve of the first phase of the general elections scheduled for November 13, political parties have new reason to conclude that voting cannot be held on the date announced along with the dissolution of the House of Representatives on May 22.

Political leaders argue that the elections cannot be held at a time when the law-and-order situation is deteriorating amid an increase in Maoist violence. "In such circumstances, the King can avert a possible constitutional crisis by exercising his constitutional authority at the recommendation of the political parties," says CPN-UML leader K.P. Sharma Oli. "The solution will be to form an interim government with the mandate to bring the Maoists into the mainstream."

Although King Gyanendra's decision to dissolve the House of Representatives on the recommendation of Prime Minister Sher Bahadur Deuba was in conformity with the constitution, Nepali Congress president Girija Prasad Koirala and some other leaders projected the move as unconstitutional from the outset.

"It is strange to read the recent statements of political leaders and intellectuals who accused the prime minister of trying to become another Jung Bahadur when he followed the constitution," says a political analyst. "The same brand of politicians see democracy in violating the constitutional provisions."

The major political parties are pushing the constitution toward its deathbed by creating another constitutional crisis. Any action taken without the recommendation of the prime minister would be unconstitutional. "In the name of averting a constitutional crisis, political parties must not create another one," the analyst says.

Some politicians argue that invoking Article 127 is not as easy as it sounds. "There are few options to avert the constitutional crisis. As far as Article 127 is concerned, the King cannot exercise it without the recommendation of the prime minister," says Rabindra Nath Sharma, senior leader of the Rastriya Prajatantra Party. "At a time when the King cannot appoint or dismiss the prime minister, the present crisis will have to be settled either through the resignation of the prime minister or the reinstatement of the House of Representatives. When the government alone is not in a position to hold the elections on schedule, some sort of acceptable step will be required to avert the crisis."

Whatever the specific options forwarded by the leaders of the parties, all of them want the dismissal of Prime Minister Deuba to form an all-party interim government under Article 127. Although the constitution does not give any discretionary power to the King to dismiss and appoint a prime minister, the four national parties seem to be in a mood to make him do just that.

"Appointing an all-party interim government to settle the present violence and create a situation conducive to the elections is a political decision," says senior advocate Mukunda Regmi, who was a member of the committee that drafted the constitution. "If the King and the major political parties agree to constitutional and political ways, there can be a solution. This is not the time to go after what the words in the constitution say, but to search for a political settlement of the present violence," he adds.

"At a time when it is impossible to hold the elections, there is a choice of forming the government through the upper house or speaker and deputy speaker," says Regmi, who pleaded in favor of restoring the lower house during Supreme Court hearings on petitions challenging the constitutionality of Deuba's dissolution order.

The rules of democracy and the existing constitution say that elections are the only way the people can exercise their sovereign rights. Interestingly, so-called democratic leaders and intellectuals are trying to avert the elections and want to grab power from the backdoor.

If the elections are postponed under Article 127 or any other article, the country will face far-reaching consequences in the future. Whenever a corrupt and inefficient prime minister decides to avoid the elections, he or she may simply invoke the precedent to prolong the life of the government for an indefinite period of time.

"I don't understand how political leaders with such a long history of sacrifice for the cause of democracy can seek the invocation of extra-constitutional means to suspend the elections. Once extra-constitutional means are invoked, they can be used against any elected government in the future," says a political analyst. "What type of democracy do political parties want by denying the right of the people to choose their representatives?"

The present constitution clearly defines the role of the King, who cannot act without the recommendation of the prime minister. Will Prime Minister Deuba recommend the dismissal of his own government by invoking Article 127? "I don't think any prime minister could take such a politically suicidal decision," says advocate Bed Prasad Shivakoti. "This is not a time to debate on the article 127 but to take steps to hold the elections."

If the King cannot act without the recommendation of the prime minister, why, then, are the country's major political parties urging him to follow their demands and prove his democratic credentials? Instead of submitting the memorandum to the King, the political leaders would be better off making the proposal to the prime minister, who has the authority to recommend the monarch to activate Article 127.

Even if the King were to agree to dismiss the government, who, then, would he appoint prime minister - Surya Bahadur Thapa, Badri Prasad Mandal, Madhav Kumar Nepal or Girija Prasad Koirala? And who will guarantee that the new interim prime minister will hold the elections as fixed under all-party decision? If the new prime minister extends his tenure indefinitely, who will replace him? Nepal seems to be heading toward a government that is not popularly elected.

"The King can save democracy by invoking Article 127 to avert the political crisis and reviving the House of Representatives to pave the way for nominating the new prime minister," says Bishwa Nath Upadhyaya, a former chief justice and chairman of the constitutional recommendation commission.

Political leaders argue that the country has no alternative to activating Article 127 by the King to avert a constitutional crisis, as the Maoists have announced a three-day Nepal Bandh beginning from November 11 until the day the first phase of elections begins.

"The King can save democracy and the country by activating Article 127 under which the King can exercise power to settle any issue. As the country's major political parties have already recommended finding a way out of the present political and constitutional crisis, the King should not hesitate to act in accordance with the line of political parties and constitution," says Arjun Narsingh KC, spokesman of the Nepali Congress.

Nepal's 12-year-old democracy is now fighting for survival. Introduced through violent street demonstrations, this constitution seems destined to meet the fate of its predecessors if Maoists act on their threat to disrupt the elections.

"Since the government has expressed the commitment to hold the elections, we must concentrate our efforts on how to make it possible. We can consider the article 127 once the elections cannot take place," said MP Radheshyam Adhikary. "Even so, the prime minister's recommendation is necessary to activate the article 127."

Even if the King were to accept the recommendation of all the four parties, would such a settlement be acceptable to all. If the King is forced to exercise his discretionary power, moreover, why should he follow the directives drawn up by four out of countless parties in the country?

In the previous constitution, there were certain provisions under which the King could act in times of constitutional crisis. According to Article 90 of the Constitution of Nepal 1960, the King had residuary powers. The article said all inherent powers relating to matters not provided for in the constitution or in other laws for the time being in force, would continue to vest in His Majesty.

As the existing constitution has vested sovereignty in the people, the King does not have such powers. He is required to act on the recommendation of the popularly elected prime minister. Article 127 says, "If any difficulty arises in connection with the implementation of this constitution, His Majesty may issue necessary orders to remove such difficulty and such orders shall be laid before parliament." Moreover, Article 35 (1) says, "The executive power of the Kingdom of Nepal shall, pursuant to this constitution and other laws, be vested in His Majesty and the Council of Ministers."

Article 35 (2) says, "Except as otherwise expressly provided as to be exercised exclusively by His Majesty or at His discretion or on the recommendation of any institution or official, the powers of His Majesty under this constitution shall be exercised upon the recommendation and advice and with the consent of the Council of Ministers. Such recommendation, advice and consent shall be submitted through the Prime Minister."

"It is shameful to hear so-called democrats urge the King to exercise extra-constitutional authority to avert the elections," says advocate Sher Bahadur K.C. "Whatever the circumstances, once the constitution is distorted to find an extra-constitutional way out, it will kill the basic thrust of the constitution and promotes the extra-constitutional ways."

The recent turn of political events seems to signal that the country will have a government having no popular support but imposed upon the recommendation of the country's major "democratic" political parties. "What type of democracy Nepal's so called democratic parties and so called democratic intellectuals want to impose in the country where the constitution of the Kingdom of Nepal 1990 clearly stipulates that the sovereignty lies on the people," said advocate KC.

The suggestion forwarded by constitutional experts, political parties and intellectuals will kill the essence of the present constitution, which is based on a system of rule by popularly elected representatives. Any extra-constitutional step would pave the way for another type of system where the rights of the people to choose elected representatives are denied.