Court verdict: A setback to direct rule

By the Supreme Court’s verdict, the Royal Commission on Corruption Control (RCCC) is out. As it was an unconstitutional body, its ouster has been widely welcomed. The Supreme Court threw it out as it viewed it as a malignant outgrowth in the organic structure of the Constitution. It looked terrible to find a judicial body manned by people with non-judicial backgrounds vested with powers to investigate, frame a case, decide it and penalise the accused. It was nothing less than the summary trial and punishment comparable to the

practices of the Maoist courts and reminiscent of the wild justice of the Wild West of America. Its dismissal was not a big deal except for Sher Bahadur Deuba, Prakash Man Singh and a bunch of officials, for whom it was a great relief.

The real big deal is its fallout on the formidable Article 127 of the Constitution. No longer can it be used as freely and wantonly as being done for so long since October 4, 2002. The Supreme Court has set a limit to its use in unavoidable conditions and for the right purposes. It is on the ground of non-justification of the royal action on continuance of RCCC under that hitherto unquestionable but hereafter questionable article that the measure was declared null and void.

That is, in real sense of the term, a big setback to the King’s road map. The follow-up choice is clear. You have to throw the Constitution out to stave off the sword of Damocles of the court hanging over every potential royal action under that article. None other than Vice Chairman Dr Tulsi Giri would agree to this fear and like to see the Constitution abrogated instead of working under constant tension and threat from the judiciary. If not, he would choose himself to be out of the government because he cannot, given his temperament, bear with the judicial obstructions standing in the way of fulfilling the royal agenda.

The Supreme Court has also given a subtle message that the constitution of the Council of Ministers under the King’s chairmanship is not desirable. It has, nevertheless, approved the formation of several governments from 2002 to 2005 under different civilian prime ministers out of no-option circumstances. The royal critics are already raising their voice on this

basis against the King holding the reins of power unto himself. In due respect to the verdict of the highest body of the judiciary, the King can renounce chairmanship of the cabinet and form a new government under a new prime minister.

It is Home Minister Kamal Thapa who stands out as the most eligible candidate for the highest post in the executive for his aggressive posture and arrogant performance in the municipal elections and his tough operations in rounding up political opponents and civil leaders. In view of the dangers looming ahead of the Maoist planned attack on the capital, Mr Thapa has a better claim to head a government that is absolutely loyal to the King, cooperative to the security forces and representing a political party.

More serious than the challenge to Article 127 is the opening of the court’s doors to hear cases against those royal decisions which involve constitutional questions.

The Supreme Court has kept political decisions outside its jurisdiction. But those decisions having constitutional implications and complications, albeit political, can be challenged in the court. It means the government is obliged to convince the court in every important decision that it is absolutely of political nature and does not breach the letter and spirit of the Constitution. Can any government run the business of governance under in such an uncertain situation? That is yet another reason why the King has to abrogate the Constitution or end his direct rule. These two things cannot go together.

The Supreme Court’s view which has the most serious implications is that the sovereign power as per the Constitution of 1990 lies in the people and not the King. Without challenging this line of argument, Dr Tulsi Giri has defended the direct royal rule on the logic that the King on behalf of the people exercises the sovereignty of the people. But the royal proclamations testify to the contrary. The King has asserted that he is acting by virtue of the state power being vested in him by history, tradition and the Constitution. The royal decisions made in this belief are bound to contradict the judicial view on issues of sovereign and state power.

It again means that the moment any royal proclamation contains this view, the court will be called in to quash it. There is bound to be a constant clash on the constitutionality of royal proclamations. That also leads to the same conclusion that you have to kill the Constitution to continue the present style of governance. The other choice is, of course, to change the whole style, which is not palatable to the present establishment.

Shrestha is co-coordinator, Volunteers Mediators Group for Peace