KING GYANENDRA AND THE DESTRUCTION OF DEMOCRACY IN NEPAL:

Monday 4 April 2005, by Tapan BOSE

On 1 February 2005, King Gyanendra of Nepal usurped all executive powers of State through a proclamation of Emergency in the country that has been precipitously descending into bloody chaos since his anointment as the king following the inexplicable massacre of the royal clan on 1 June 2001. The king justified the proclamation by citing the failure of the political parties in taking a unified approach against terrorism, their inability to hold elections in time and also their betrayal of the people’s aspirations for social, political and economic justice. The accusations are uncanny for the reason that the monarchical manipulations, as enumerated below, have directly contributed to these failures of the multiparty system in Nepal.

A FRAUD ON THE CONSTITUTION:

In his televised addressed, King Gyanendra promised that the council of ministers being appointed under his chairmanship “will give utmost priority to reactivating multiparty democracy in the country within three years...” The king referred to Article 27(3) of the 1990 Constitution to claim legitimacy for his takeover. Article 27 (3) says that “His Majesty is to preserve and protect this Constitution by keeping in view the best interests and welfare of the people of Nepal.” The communiqué issued by his press secretariat explained that the declaration of a state of emergency by the king was in accordance with Article 115 (1), which allows him to take the step in the event of a grave danger to the sovereignty or integrity of the kingdom. Article requires the proclamation to be approved by a two-thirds majority of the lower house of parliament within three months or of the National Assembly, meaning the upper house, when the lower house, having been dissolved, does not exist. The proclamation of Emergency under Article 115 can last, with the approval of parliament, for the maximum period of nine months. The lower house of Parliament has remained dissolved since 22 May 2002. Consequently, the 60-member National Assembly too remains defunct. Its composition ensures that a motion to ratify the emergency, even if the king should allow it to meet, would fail. However, in brazen contempt of the constitutional procedure for the ratification of the emergency and its permissible period, the king has promised to “give utmost priority to reactivating multiparty democracy”, through the council of ministers under his chairmanship announced by him on 1 February 2005, within three years. This fraud on the constitution, irrespective of the consequences, is nothing short of a coup comparable only to the capture of political power by Gyanendra’s father King Mahendra on 15 December 1960 when he had introduced the Panchayat system after dismissing the first elected government in the country under Prime Minister B. P. Koirala.

MONARCHICAL MANIPULATIONS AND THE FAILURES OF THE MULTIPARTY SYSTEM:

Gyanendra , who became the king of Nepal for the second time under circumstances of calamity for the country, had been crowned earlier in November 1950 when he was a three year-old infant. His grand-father Tribhuwan, along with all his sons, had then moved to India to work out the Delhi Agreement of 1951, which promised the end of feudal autocracy in Nepal and a democratic rule for its people under a constitution to be framed by an elected Constituent Assembly. Infant Gyanendra was relieved of the crown when his grand-father returned to Nepal in February 1951 to proclaim the inauguration of a democratic era under a constitutional monarchy.

The story of more than 5 decades long struggle of the Nepali people to obtain that promise and their travails under royal machinations is long and harrowing. The so-called Democratic Revolution of April 1990 has been hailed as a significant, even if partial, achievement in that direction. The achievement got quickly dissipated even as the combined political leadership of the Nepali Congress and the United Left Front, in their haste for power, failed to safeguard the promise of a democratic rule under a constitution to be framed by an elected Assembly.

The political power they obtained, under the policy of “national reconciliation with the palace”, was partial. But it corrupted their political vision and culture swiftly and totally. More radical elements within the political process became quickly disenchanted to adopt the path of a “people’s war”. Starting from the mid-western hilly region of the country, where the people lived in abysmal conditions of poverty and deprivation of all fundamental human rights even as the State remained entrenched in its primitive feudalism, the “people’s war” became widespread and implacable. The military response of the Nepali State under inspiration of “the global war on terror” and its failure to pursue the path of conciliation through honest dialogue on political reform merely galvanized the insurgency. Gyanendra’s takeover of the kingdom, following the royal massacre on 1 June 2001, provided steam to the conflict. Prime Minister Koirala resigned from office on 19 July 2001, little over six weeks after the coronation of Gyanendra, to concede his inability to militarily defeat the insurgency. Sher Bahadur Deuba replaced him to announce a truce with the Maoists. The ceasefire and the attempt at peace talks quickly failed because of the government’s unwillingness to discuss substantial reforms like the election of a constituent assembly to rewrite a new constitution for the country.

King Gyanendra used the situation to encroach into the executive authority of State by declaring a State of Emergency on 26 November 2001. Sher Bahadur Deuba, who remained the head of the caretaker government, ingratiated himself to the king by supporting the extension of the Emergency and by brining in draconian laws like TADO. He also dissolved the lower house of the national parliament to remove the threat of a parliamentary opposition to the emergency regime. This paved the way for the king to further dismantle the façade of democracy that had been developed since April 1990.

On 4 October 2002, King Gyanendra made his first direct move to run the country under the cover of Article 127 of the Constitution, which allows him to “issue necessary orders” to remove “any difficulty” “in connection with the implementation of the Constitution.” Under this cover, the king sacked Deuba’s government, assumed all executive authority and appointed his own cabinet and a prime minister to run the administration. The takeover was blatantly illegal. Under Article 36(1) of the 1990 Constitution, the king can only appoint the leader of the majority party in parliament as Prime Minister. In the absence of a clear majority and the failure of political agreement on a coalition government, the king is required to dissolve the parliament and to hold fresh elections within six months. Article 127 requires that the king’s orders to remove “any difficulty” “in connection with the implementation” of the constitution “shall be laid before parliament”. But there was no parliament, having already been dissolved by Deuba. The illegal emergency regime, with the king remaining its executive head, made a ceasefire agreement with the Maoists in January 2003 and carried out open negotiations with their leaders over the next seven months. The peace talks ultimately broke down in August 2003 as the Maoists refused to give up their demand for a constituent assembly and the government tried to militarily destroy their organization even as the façade of negotiations was on. The massacre of 19 Maoist sympathizers carried out by the Royal Nepal Army on 17 August 2003 at Doramba, even as the government representatives and the Maoists leaders were talking peace at Dang, has been exhaustively documented by the National Human Rights Commission of Nepal and other international human rights organizations. The incident epitomizes the brutality, lawlessness and total impunity with which the Nepali regime aims to stamp out the unrest in the country.

REPORTS OF STATE ATROCITIES:

The illegal emergency regime lasted until 2 June 2004 when, under the pressure of the “anti-regression” demonstrations organized jointly by five political parties, the king once again appointed Sher Bahadur Thapa as the Prime Minister of a multi-party government, which promised peace talks with the Maoists and early elections. The promises remained empty and unfulfilled as the government, under active encouragement of the United States arguing against appeasement with “Pol Pot like” Maoists, exhausted itself in anti-insurgency operations. The American ambassador to Nepal Michael E. Malinowki, who compared the Maoists with Cambodia’s genocidal Pol Pot regime and Osama bin Laden’s Al Qaeda, went on reconnaissance missions to the military camps in the frontline insurgency infected areas apparently to boost the morale of the Nepali troops. Human rights violations and atrocities, including unlawful killings, summary executions, enforced disappearances, custodial torture, illegal detention and abduction, committed by both the State forces and the Maoist guerrillas became rampant and widespread.

Six days before King Gyanendra’s 1 February 2005 coup, UN High Commissioner for Human Rights Louise Arbour summed up the situation in the following words: “A climate of impunity prevails in this country as a result of which the rule of law, the fundamental glue of any society, is being worryingly eroded.” According to the U. N. Working Group on Enforced or Voluntary Disappearances, Nepal enjoys the dubious distinction of having the highest number of disappearances in the world. The situation of human rights defenders and independent reporters is, as exemplified by the case of Jit Man Basnyet, extremely precarious. Jit Man Basnyet, editor of Sagarmatha Times, was illegally arrested and held in the barracks of Bhairav Battalion of Royal Nepal Army for about 10 months from February to December 2004 for reporting a military massacre. During his illegal detention, Basnyet discovered that hundreds of persons abducted illegally are likewise detained in the barracks and routinely killed. Among them are known political workers like Krishna Khatri Chhetri, a member of the executive committee of All Nepal National Federation of Students Union, whose arrest and custody the government has denied. The NHRC conducted its own investigation to conclude that Krishna Khatri Chhetri was illegally detained by the army and has probably been done to death. Jit Man Basnyet had to disappear from Nepal after a friend in the army warned him of the “impending danger” a day before King Gyanendra staged his coup. Hina Jilani, UN Secretary General’s Special Representative on Human Rights Defenders, has mentioned that 10 special communications she sent to the government of Nepal in 2004 have remained unanswered and that she has been unable to undertake a country visit in the absence of an official invitation.

SUSPENSION OF THE RIGHT TO REMEDY AND THE ROLE OF THE JUDICIARY:

This is the background to the coup King Gyanendra staged on 1 February 2005 by playing fraud on the 1990 Constitution while promising to restore peace, security and multiparty democracy within three years. The coup is illegal and, theoretically, the Supreme Court of Nepal, by exercising its powers to review any law on the ground of inconsistency with the constitution and to declare it to be void, enshrined in Article 88, can strike it down to be unconstitutional. The constitutional shield against any judicial action that the king normally enjoys under Article 31 should not be of help in this case since the same Article, which bars any question from being “raised in any court about any act performed by His Majesty”, provides that it shall not “restrict any right under law to initiate proceedings against His Majesty’s Government”. However, the court has already displayed a regrettable scantiness of courage in upholding the constitution against the invasions which the emergency provisions make by failing to provide remedy even for rights that have not been suspended. The Attorney General argues that with the suspension of the right to remedy under Article 23, the courts cannot issue any order or writ except the writ of habeas corpus.

RESPONSIBILITIES OF THE INTERNATIONAL HUMAN RIGHTS COMMUNITY:

Nepal has signed and ratified a number of international human rights treaties and conventions including the ICCPR, the Convention against Torture and the Geneva Conventions. Under the obligations of these conventions, Nepal must continue to respect the fundamental rights against arbitrary deprivation of life, torture and enforced disappearance of all its citizens even in a state of emergency and in its efforts to end the armed insurgency. The overwhelming evidence accumulated by the Nepali and international human rights organizations, including UN High Commissioner for Human Rights, shows that the State agencies have for years been inflicting violence and brutality on a staggering scale against the Nepalese people in a climate of total impunity. A total of 227 persons lost their lives, mainly under army operations, in the single month after the 1 February coup. The use of private militias to attack villages considered to be sympathetic to Maoists, as in the Kapilbastu district on 17 February when a 1000 strong armed mob burnt down at least 321 homes, killing and raping scores of innocents in the process, heralds a new brutal phase in the counter-insurgency tactics that threatens to transform Nepal’s hinterlands into “killing fields”. Reports also indicate that the State is trying to induce conditions of starvation in the mid-western region, the birthplace of the Maoist insurgency that remains its stronghold, by withholding essential food supplies. The tactics of deliberately engineering conditions of famine to weed out the insurgent population was last followed by Ethiopia between 1983 and 1985 when hundreds of thousands perished from starvation especially in its politically turbulent regions of Tigary and Wollo.

The international community engaged for long with Nepal’s democracy, development and human rights issues carries a large measure of responsibility for permitting the Himalayan kingdom to slip down the abyss of violent anarchy with its silent connivance and participation in the bad governance of the country. Appeals to the Maoists to respect international humanitarian law norms and to abandon the path of violence to join the process of dialogue and democracy will remain bereft of moral efficacy if the international community fails to strongly censure and curb the current regression of the monarchic tyranny to its medieval mould of barbarism.

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