[THIS ARTICLE WAS WRITTEN IMMEDIATELY AFTER THE POWER GRAB BY KING IN FEBRUARY 1-2005 AND THIS ARTICLE WAS PRESENTED IN ONE OF THE CONFERENCES IN NEW DELHI IN AUGUST 2005. THIS IS THE ABSTRACT OF THE SAME ARTICLE AND AGAIN SAME ARTICLE WITH SOME MODIFICATIONS WILL BE PRESENTED IN ANOTHER CONFERENCE (WITH PRIOR INFORMATION AND APPROVAL OF THE ORGANISER) IN NEW DELHI IN MAY IN THE LIGHT OF SOME RECENT DEVELOPMENTS IN NEPAL. FOR YOU READERS, ABSTRACT OF THE SAME HAS BEEN POSTED HERE-AUTHOR.]
The recent power grab in February 1 by King Gynendra in Nepal, a tiny Himalayan nation progressing towards the development of full-fledged democracy, should be a matter of grave concern to anybody who has utmost faith in the constitutional democracy and the rule of law. After the re-establishment of Democracy in 1990, the Kingdom was practising one of the best forms of parliamentary democracies in the world embodying the multi-party democracy and constitutional monarchy in its supreme law of the kingdom. The Constitution of the Kingdom of Nepal, 1990, was a legal and political document where political parties and the active monarchy had agreed upon the various questions, inter alia, constitutional monarchy and parliamentary democracy.
But, the unilateral steps taken by King Gynendra to assume the executive powers, sidelining all the democratic parties, has caused a fundamental breach of the letters and spirits of the Constitution. The steps taken by King may be justified politically but as a student of constitutional law, such actions can not be endorsed after reading the Constitution of Nepal. The basic assumption regarding the notion of Constitutional monarchy sounds hollow if we try to reconcile the series of actions taken by the King and the position of king envisaged in constitution.
The first step initiated by King was the dismissal of the Sher Bahadur Deuba Cabinet to derail the functioning democracy. The dissolve of Deuba Cabinet marked the starting point of encroaching and scraping of the constitution. After this incident, there have been various unconstitutional decisions by the palace that render the constitution nugatory and superfluous. Under the guise of constitutional rule, king is ruling the nation solely on the ground of Article 127 which gives King some power to remove the difficulties in the operation of the Constitution. The preamble and ‘basic structure’ of the Constitution does not imagine the active role of King and no Articles in the constitution allow king to take any decisions that violate the basic understanding of the norms of the ‘Constitutional Monarchy’. The King has to perform every executive duty on the recommendation and advice of the Council of Ministers submitted through Prime minister. Then, fundamental question arises, how the king can dismiss a cabinet without its recommendation?
So, this paper, in depth, tries to analyse the constitutional powers of the King and its relation with the executive bodies. The basic propositions laid down by the Apex Courts of UK, USA and India on rule of law and Constitutional supremacy have been compared with those of Nepal to further advance the arguments that there is no constitutional rule in Nepal but the law has been converted to ‘command of sovereign’ where concept of sovereign is, still ambiguous. We have to ask this question, again and again, who is sovereign- “king” or “Parliament and cabinet” elected by people?
THIS paper examines some of the questions related to the meanings of ‘democracy' and constitutional supremacy in Nepal. The Nepalese constitution of 23 Kartik, 2047 B.S. (November 9, 1990 A.D.) was a bold attempt to institutionalize the goals of the popular movement of the spring of 1990. In a dramatic reversal of previous formulations, it placed sovereignty in the people and made the king the symbol of the nation, thus legally transforming the state from an absolute to a constitutional monarchy. It reinstates the system of multiparty democracy absent since the brief democratic experiment of the 1950's, and presents guarantees of new basic rights. The subsequent completion of elections and formation of a new Government according to its provisions, even with the problems and conflicts common to such fundamental political restructurings, have provided decisive steps towards transforming it from a theoretical document to a living reality.
The Preamble of the Constitution of the Kingdom of Nepal, 1990 reads as: “We are convinced that the source of sovereign authority of the independent and sovereign Nepal is inherent in the people, and, therefore, We have, from time to time, made known our desire to conduct the government of the country in consonance with the popular will”;.
This is the view of the former late King Birendra, at the time of promulgation of New Constitution of the Kingdom of Nepal, who was convinced that the sovereign power lies on the people and was convinced that the government should be conducted on the basis of popular will. The king was compelled to convince by the people who participated in the democratic ‘people’s movements’ and partyless panchayati system was overthrown. After 15 years, king Gynendra, who became king after the royal massacre of 2001 where entire family of King Birendra and some royal relatives were killed by the then crown Prince Dipendra, blatantly violated the promises and assurances given by the palace. The Preamble further mentions, “……………….to consolidate Adult Franchise, the Parliamentary System of Government, Constitutional Monarchy and the System of Multi Party Democracy by promoting amongst the people of Nepal the spirit of fraternity and the bond of unity on the basis of liberty and equality; and also to establish an independent and competent system of justice with a view to transforming the concept of the Rule of Law into a living reality…………… ”
But, the living realities of preamble has been made unreal and each and every word of the Preamble has been violated making all the systems defunct which has put the state at the verge of collapse or at the brink of disaster, whichever happens earlier .
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