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Friday, Feb 04, 2005

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Opinion - Leader Page Articles

Crisis in Nepal

By Rajeev Dhavan

If electoral democracy was suspended in Nepal in 2002, the sacking of Prime Minister Deuba and the assumption of total autocratic powers by the King now have totally buried any semblance of constitutional governance in Nepal.

CONSTITUTIONAL GOVERNANCE takes years to build but may collapse in a day. Following the end of the rule of the Ranas in 1951, governance in Nepal was conducted through a number of interim advisory governments. No sooner was the multi-party Constitution adopted in 1959, it failed. B.P. Koirala led the Nepali Congress Party to an electoral victory. But by 1960, King Mahendra suspended Parliament and took control. On the basis that Nepal was not quite ready for a parliamentary democracy in which political parties competed for power, a new panchayat-based Constitution was created in 1962. Amid years of indifferent governance, political agitation led to a constitutional referendum in 1980. As a result, the King agreed to direct elections but without political parties.

Increasing discontent led to Nepal's new Constitution of 1990, which created a parliamentary democracy with a Bill of Rights and an independent judiciary. In 1991, G.P. Koirala led the Nepali Congress Party to victory and became Prime Minister. But in 1994, he was defeated in a no-confidence motion. He lost the elections and a communist Government was ushered in. It also fell soon. The period 1997-2001 saw many governments — the result of party splits and infirm coalitions. Over the 1990s, the Maoist rebellion intensified. Talks for a truce failed in 2001 when a state of Emergency was declared, which is remembered for its flourishes of state lawlessness.

Amidst all this confusion, on June 1, 2001, King Birendra and his family were killed by Crown Prince Dipendra, who also died after inflicting gun shot wounds on himself. King Gyanendra ascended the throne. As violence increased, Prime Minister G.P. Koirala resigned. Even though the Assembly was dissolved in 2002, no elections were called. A veritable musical chairs followed of successive Prime Ministers with Sher Bahadur Deuba, who was Prime Minister between 2002 and 2003, being reappointed in June 2004. Meanwhile, the rebels blockaded Kathmandu. Finally, on February 1, 2005, King Gyanendra sacked Prime Minister Deuba and declared an Emergency to assume all powers of governance for three years.

From 1951, Nepal's experiments with constitutional democracy have been disfavoured by history. The present crisis is riddled with a constitutional impasse. Normally, a Prime Minister who is willing to act as one cannot be dismissed unless he has lost his majority. The question of Prime Minister Deuba losing his majority did not arise as there have been no elections since 2002. King Gyanendra has relentlessly sacked Prime Ministers since he was enthroned in 2001— trying his hand with various alternatives including royalist supporters. If the sacking of Mr. Deuba was unconstitutional, the legality of the King's assumption of Emergency powers is even more doubtful. Under Nepal's Constitution, an Emergency can be imposed if a "grave crisis" such as war, external aggression, armed rebellion or extreme economic disarray threatens the sovereignty and integrity of the country. Nepal is in a state of crisis. In the absence of elections, there being no Parliament, the question of the House of Representatives approving of the Emergency by a two-thirds vote does not arise. Constitutionally, an Emergency beyond a period of one year is not envisaged. An arbitrary declaration of Emergency for three years goes beyond the pale of constitutional governance. If electoral democracy was suspended in Nepal in 2002 (from when elections have not been held), the sacking of Prime Minister Deuba and the assumption of total autocratic powers by the King in 2005 have totally buried any semblance of constitutional governance in Nepal for a long time to come.

Constitutional lawyers have problems dealing with situations of this nature. The sacking of Prime Ministers is not unknown even under constitutional governance. In 1963, the Privy Council in appeal found the sacking of the Nigerian Prime Minister invalid. But Malaysian courts found the removal of a provincial Premier in 1966 valid. In India, Governor Dharam Vira's dismissal of Chief Minister Ajoy Mukherjee in West Bengal in 1967 was not interfered with by courts. Mulayam Singh's complaint that Governor Motilal Vohra had sacked him unfairly in June 1995 was sent to a Supreme Court constitution bench where the issue died an obsolescent death. But in all these cases, a justification for the dismissal was a refusal to test that government's majority.

But ingenuity has never failed lawyers and judges in such situations. In a sense, a new justificatory trend emerged in Pakistan in 1958 when President Ayub Khan scrapped the Constitution of 1956 to assume total powers. In Dosso's case (1958), the Pakistan Supreme Court used jurist Hans Kelsen's theory that a revolution can be justified when the basic norm underlying a Constitution disappears and a new system is put in its place. Dosso's case became the new basis for a new jurisprudence for usurpers. As a result, every usurper or dictator who destroyed an old Constitution could claim the right of constitutional governance under a new basic norm of his own creation. But in such situations what was the new basic norm? In Asma Jilani's case (1969), Pakistan courts took the view that the doctrine of necessity could be the constitutional basis for a new usurper regime. As Pakistan went through usurper after usurper, this usurper jurisprudence was consolidated — no less in Begum Bhutto's case in 1977. This consolidation became even more startling when President Pervez Musharraf assumed power in 1999 and administered a new oath to his judges preventing them from challenging his usurpation.

Pakistan's `usurper jurisprudence' was not alone in pursuing this kind of constitutional subversion. Judges from Ghana followed this approach in Sallah's case in 1966 and those from Nigeria in Laknami's case in 1969. Such an issue reached English courts in the aftermath of Ian Smith declaring independence in Rhodesia (now Zimbabwe). But in Madzimbamuto's case (1969), British judges refused to follow the change-in-basic-norm theory and declared Mr. Smith's regime unconstitutional — although one dissenting judge seemed to give some legal basis to the Smith regime under the doctrine of necessity. But while it was possible for British judges in Britain to take this stance from far away London, it requires courage for local judges located in the crisis country to challenge this kind of unconstitutionality in the face of a military or dictatorial takeover.

As far as Nepal is concerned, it remains to be seen what Nepalese courts will do if asked to deliberate on the actions of King Gyanendra. In the past, the lawyers of Nepal have been courageous in taking constitutional issues to court. Nepal's judges could declare King Gyanendra's takeover unconstitutional. This would mean restoring Prime Ministership to Mr. Deuba who will in any case not be responsible to any Parliament. It would, of course, be easier for them to invoke Kelsen's theory of a change in the basic norm to legitimise King Gyanendra's usurpation of dictatorial power. In this, it would find support from the doctrine of necessity invoked by Pakistan's courts to justify virtually all or any kind of unconstitutional violation. A doctrine to justify revolution has been trivialised to help dictators. The rule of law is ill-served by such constitutional acrobatics.

But where does Nepal go from here? The actual situation in Nepal is serious and drifting out of control. When King Gyanendra used the Emergency powers in November 2001, the situation worsened in ways that forfeited the confidence of the people. Quite apart from the constitutional violations, the present situation was hardly the time to compound a military crisis into a constitutional disaster. It is in the overall interests of Nepal that the King recall his orders sacking Mr. Deuba. Declaring a three-year Emergency is neither necessary nor prudent. On February 2, 2005, he swore in a Cabinet of loyalists. What is needed is to create consensus national governance, which will take Nepal into a democratic framework. When Mr. Deuba asked President George W. Bush for support to fight the Maoist rebels in 2002, America pledged $20 million to this cause. It remains a moot question as to what the Government of Nepal expects from America now — and, even more so, what America led by President Bush will threaten to do. This is the time for the King of Nepal to return to first principles of democratic governance and not invite further chaos in an already troubled nation. Constitutions require an inner morality to make them function.

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