Article 127 - An unwritten constitution is emerging
The Constitution of the Kingdom of Nepal 2047 has an Article related to the power which can help in removing the difficulties faced by the country. This article happens to be Article 127 which states: “If any difficulty arises in bringing this constitution into force, His Majesty may issue necessary orders to remove these difficulties. The orders issued in the process shall be placed before the Parliament.”
Recently, King Gyanendra has appointed Justice Dilip Kumar Paudel as the new Chief Justice of Nepal — the most coveted post because every judge aspires to it. Paudel deserved the post, as he was the only judge in the Supreme Court who met all the constitutional requirements necessary for it. He was the lucky judge for whose appointment the Constitution had to be amended by the King. The King passed an order invoking Article 127 of the Constitution, authorising the outgoing Chief Justice to preside over the meeting of the Constitutional Council (CC), in the absence of the Prime Minister who happens to be the ex-officio Chairman of the CC as per Article 117. It provides for additional four members in the Constitutional Council, including the Chief Justice, the Speaker of the House of Representatives, the chairman of the Upper House and the leader of the opposition in the House of Representatives. Article117 (2) states: “For the purpose of submitting recommendation for appointment of Chief Justice, the minister of justice and a judge of the Supreme Court shall also participate in the Constitutional Council.”
It is a fact that the entire administration of the kingdom is at present being run by this Article. Therefore, this article stands as the sum and substance of the 1990 Constitution. What would have happened had there been no Article 127. In the Constitution, the kingdom would have been deprived of the glamorous Chief Justice till a new Prime Minister was appointed and the chair of the Chief Justice would be lying vacant. Had this provision not been incorporated into the Constitution, no Chief Justice would have presided over the Constitutional Council meeting. Without this article, there would be no council of ministers without the prime minister.
In the absence of this article, a candidate defeated in the general elections would never have had any chance to become the prime minister of Nepal. Had there been no Article 127, Sher Bahadur Deuba could have been appointed as the prime minister for the third time nor the Communist Party of Nepal (UML) could have got an opportunity to send a number of its party leaders to the Deuba government.
The mighty effect of Article 127 became more prominent when it succeeded in taming the seemingly defiant Speaker of the Lower House to attend the meeting of the Constitutional Council presided by the outgoing Chief Justice in place of the prime minister as on his refusal to do so he might have been removed by any royal order in contravention of the Constitution which has laid down procedure for removal of the Speaker by passing of the impeachment motion with two-thirds majority in the Lower House.
As a matter of fact, from October, 4, 2002 onwards, a new or an amended constitution is being gradually framed in an unwritten form with some salient features like the sovereignty lies exclusively with the monarch; the executive power is vested only with the King; the post of prime minister is optional; the Council of Ministers can be presided over by the chairman or vice-chairman; the Constitutional Council can be headed by the Chief Justice or anybody (a minister) authorised by the King; Parliament is not needed to enact any law as the kingdom can be run through ordinances; budgets need not be passed by the Parliament; ordinances need not be approved by the Parliament; the Commission for the Investigation of Abuse of Authority has been reinstated in its original power and function as it was in the Panchayat system in the name of the Royal Commission for Control of Corruption; fundamental rights are getting redefined; the Constitution can be amended by the order of the King; like Sri Lankan president, the King can look after several ministries; anybody can be made minister for any number of years; the provision for national security is no longer required; the role of constitutional bodies is being reduced to an advisory body whose recommendations are not treated mandatory by the government any longer, etc.
The Constitution of the Kingdom of Nepal 1990 has been virtually replaced in practice by the ever changing (according to the need), unwritten and unproclaimed constitution. It should be named after the most used Article 127 of the present Constitution. “The Constitution of Nepal 127”. It resembles in many ways the constitution of 1962 (2019 BS) through which partyless panchayat system was introduced and absolute monarchy was reaffirmed as was done in the Constitution of 1959.
Professor Mishra is a former election commissioner