SC verdict: Far-reaching implications
Thanks to the five-member bench of Supreme Court for pronouncing its unanimous judgment on some most crucial constitutional issues, which have been eating away the very core of the democratic institutions and democracy since October 4, 2002, when the elected prime minister was dismissed and the King assumed executive power, which the 1990 Constitution does not permit. The pronouncement of the judgment was anxiously awaited, as the apex court is the sole constitutional organ empowered to interpret the constitutional provisions when needed. To some, the apex court took the constitutional issues rather lightly for the verdict was expected since October last, as the processes of hearing, studying and delivering of the judgment got prolonged for different reasons.
It is well known that out of 133 articles of the Constitution, Article 127, which is related to the removal of difficulties, is the only article operative so far, as it alone has been running the entire show of governance. Cabinets have been formed and reshuffled from time to time on the basis of this article, even the Chief Justice of the Supreme Court was appointed in accordance with it.
The then king promulgated the present Constitution on October 23, 1990 as a result of the historic people’s movement for democracy. Sadly, the late king was not reconciled to the loss of the royal rights. He started asserting his power by assuming his rights gradually. He started nominating his own men to the National Assembly, an act that actually comes under the government’s purview.
The late king did not give his assent to a bill passed by both Houses of Parliament and sent the bill to the Supreme Court for its comments without any recommendations from any constitutional body. Interestingly, sometime back, the present King had asked a sitting nominated Member of Parliament of the House of Representatives to resign and he resigned forthwith. Such tussles continued and surfaced till King Gyanendra dismissed the elected government in October 2002.
The Supreme Court verdict delivered on February 13 has categorically termed the misuse of Article 127 ‘unconstitutional.’ Some of the decisions made by the King have been struck down; many more are to be done. It is feared that all these cannot be done and implemented so easily. For example, the very existence of the present government headed by the King stands unconstitutional by implication of the verdict.
The present verdict of the apex court can be viewed from a different angle too. Recently, developments in the political circle have undergone a sea change. Almost all the major parties have decided to go in for the election to the constituent assembly. The Maoists have narrowed down their demands to one point demand of holding election to the constituent assembly. The recent municipal elections have exposed the meaninglessness of the elections. There were over 180,000 posts to be elected for local bodies. The elections were announced for only 4,146 posts in the municipalities. Nominations were filed for only 2,042 posts, out of which 1,424 were elected unopposed (more than 66 per cent of the posts to be elected) and the polling took place for only 618 posts, which comes to less than 33 per cent of the posts for which elections were called. Interestingly, it has been found that out of the 22 per cent votes polled, a substantial per cent of votes have been cast in favour of those recognised parties which have boycotted the poll.
Keeping all these factors in mind, the international community has rightly refused to recognise the elections. Since the establishment has been cornered from all sides, it might have taken recourse to back door revival of the Constitution, which it has virtually paralysed for long.
It can be recollected that when the King was to go to New York to attend the UN General Assembly meeting in September last year, the Chief Justice had opened the file pertaining to the restoration of the dissolved House of Representatives for discussion. But nobody heard anything on this score from the Court regarding it after the King’s visit was cancelled.
It won’t be surprising if the Court reinstates the dissolved House bringing division in the seven-party alliance and breaching the 12-point agreement signed with the Maoists, crushing the people’s aspirations to have their own Constitution written by the elected constituent assembly. The revival of the Constitution may be needed to show that the establishment is ready to meet the main demand of the Nepali Congress, a demand which has been consistently rejected by the Maoists. This will divert the people’s attention from their main demand of holding election to the constituent assembly. Hence, the recent verdict, which has far-reaching consequences, has been delivered so late that it will hardly revive the Constitution, which has outlived its utility. It appears to justify the saying — After death, the doctor.
Prof. Mishra is ex-election commissioner