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What King Gyanendra is Teaching the World About Nepal’s Constitution

by HOM RAJ ACHARYA And SALLY ACHARYA

Washington,
DC

There’s an elephant in the parlor. Perhaps
it’s time to notice.

Ever since Feb. 1, when King
Gyanendra imposed a state of emergency in the Himalayan kingdom,
much of the country’s intellectual leadership has charged the
king with hijacking democracy and returning to the pre-1990 days
of party-less rule. They have called on him to release the jailed
political leaders, restore democratic rights, and engage in dialogue
with parties and the Maoists.

All of that is well and good.
But to simply call for a reinstatement of multiparty democracy
and a lifting of the state of emergency is to miss the point.
King Gyanendra, it seems, is a strict constructionist of the
Constitution.

Nothing the king has done so
far, whatever his ultimate intentions, appear to violate the
broad powers given him by the laws of Nepal. If his actions violate
our own sense of morality and convictions about democratic norms
and values, then the last weeks have raised troubling questions
about a Constitution that gives one man the power to enact such
draconian measures. But either the Constitution is flawed and
the king is within his legal if not perhaps his moral rights,
or the Constitution is not flawed and the king is simply right.

There are several ways to react
to this situation. But perhaps the most popular tact has been
to avert our eyes from the awkward sight of Nepal’s Constitution
in action­the elephant in the parlor–and keep on talking
about other things, like international mediation and how to bring
the Maoists to the table.

It is, of course, the brutal
Maoist insurgency that has brought Nepal to this miserable state,
and discussion about how to end the violence is crucial. But
the Maoists have made it more than clear that their central grievance
is the role of the monarchy. Whatever their hidden and not-so-hidden
agendas, engaging them on this subject will be key to any effective
peace negotiation. To fail to address that elephant-sized issue
is to practice willful blindness.

Unless Nepal is extraordinarily
lucky and the power of Vishnu­whose avatar the monarch is
supposed to be–delivers the Maoists into the hands of the army,
then their grievances against the current Constitution will continue.
And even if the rebels do come to the table, perhaps as their
way to buy time before yet another round of violence, a wistful
plea for peace and the best interlocutor in the world can do
nothing unless questions about the Constitution are squarely
addressed. Only this gives the Maoists the prerequisite for successful
negotiations: a face-saving way out of their current impasse.

Certainly it is more comfortable
to present the case to the international community in terms of
a monarch overextending his legal limits. If the king continues
the emergency for up to three years, as he has expressed himself
willing to do, his takeover would indeed become unconstitutional.

But at the moment, those who
decry the state of emergency are like the American abolitionists
who deplored the 1857 decision of the US Supreme Court that the
slave Dred Scott could not sue for his freedom because he was
only three-fifths of a person. That was indeed the case under
the US Constitution, and the weight of any argument against it
was moral, not legal. Even if the king is violating international
laws, he appears to be doing so legally under the law of Nepal.
And that argues the case not for a return to the status quo,
but for a discussion about constitutional change.

If it achieves nothing else,
the king’s move on Feb. 1 has put into focus the extraordinary
powers that Nepal’s Constitution always granted the monarchy.
It includes an interesting and rather unusual section called
“Article 115: Emergency Power.” Under this article,
the king can impose a state of emergency “if a grave crisis
arises in regard to the sovereignty or integrity of the Kingdom
of Nepal or the security of any part thereof whether by war,
external aggression, armed rebellion or extreme economic disarray.”

In theory, the king could impose
a state of emergency because Nepal is very, very poor. Even without
a Maoist crisis, he could take the reins of power because of
rampant corruption, which surely helps to put Nepal in “extreme
economic disarray.” He can then legally suspend the freedom
of the press, the freedom to assemble peaceably, the freedom
from preventive detention without cause, and even, theoretically,
the freedom to exercise a profession such as journalism or human
rights activism. Not until three months after such a proclamation
would it need to be laid before the House of Representatives
or, in its absence, the National Assembly. That deadline has
not yet expired, and when it does, he can extend it for another
period of detentions and crackdowns.

To lobby the king to relax
the state of emergency and release detainees may be something
that we as individuals concerned with human rights feel compelled
to do. But it also comes down to a matter of trying to convince
the elephant to get off our feet. The discomfort and pressure
may be gone, but it can always return at the will of the elephant.
Perhaps the advantages of keeping an elephant outweigh the disadvantages,
but that is something that does need to be discussed openly.

The fact that the Maoists have
been calling for a constituent assembly for years should not
frighten people of good will from making the call as well. There
is no question that the Maoist’s path of bloodshed has been a
horribly wrong direction for Nepal, and one from which the nation
will not easily recover. But if one’s enemy says the sky is blue,
does it make sense to argue that it must, then, be green? The
notion of a constituent assembly did not originate with the Maoists.
Have the Maoists now conquered that piece of intellectual and
political territory so thoroughly that others are afraid to step
on it for fear of being tarred as Maoists?

There is no reason to imagine
that the first effort at creating a democratic constitution should
be a permanent and inviolable one. Even the United States had
a false start, and its initial constitution, the Articles of
Confederation, were ditched when they didn’t work and a constitutional
convention was held to draft a more workable constitution. Under
the Nepali version of this sort of constitutional convention,
a constituent assembly, the parties would go to the people with
a clear-cut agenda on what they want from a constitution. Their
particular provisions could be incorporated depending largely
on the percentage of votes they receive. The king’s supporters
could make their case. Even the Maoists could make their case
if they chose to honor their own words and participate.

Supporters of the king’s move
have argued that it is not a coup that derails democracy, but
a daring initiative that is, in effect, Nepal’s last chance.
Giving the monarch a strong role in the 1990 constitution has
proven to be a wise move, this argument goes, because it has
enabled Gyanendra to do precisely what he is doing today.

Very well. If that is the case,
then there would be no shortage of Nepalis happy to support the
continuation of a monarchy along roughly the same lines that
it holds today. If the king’s move has been as desperately needed,
as welcomed, and as effective as its supporters contend, then
it is hard to imagine that a strong monarchy would not be permanently
enshrined in the constitution of a nation as proud of its traditions
­ and, frankly, as resistant to change ­ as Nepal.

“Give him a chance,”
many argue. Well, why not? On Feb. 1, King Gyanendra put the
future of monarchy in Nepal on the line, and while even those
who do not agree with his actions must applaud his courage. If
he’s successful in promoting peace through his methods, then
the people of Nepal will surely support the king. And at any
rate, nothing being said at this point about a constituent assembly
or any other option that raises questions about his future powers
could keep him from exercising his present powers, over the next
few months, and pursuing his version of a solution. The king’s
actions can be taken as tantamount to a campaign for the benefits
of precisely the type of monarchy that Nepal has today.

It’s crucial that a constituent
assembly, if it ever happens, include an opportunity for balanced
representation of royalist views. Under the moral framework of
democracy, every hue and color must be allowed a platform. Exclusion
plants the seed of destruction that grows in the margins. Nepal
has a large conservative population with longstanding affection
for the monarchy, and this is surely as true in Rolpa and Rukum
as anywhere else. It would be deeply undemocratic to ignore and
marginalize any viewpoint, including the royalist one.

Of course, there are also many
with a different image of a future. Some do not believe that
a republican Nepal would be worse in the end than a republican
India, or that the corruption and imperfections of the political
parties are beyond the reach of civil society. Others support
a more restrained monarchy on a European model. But whatever
one’s viewpoint, Feb. 1 has meant that the relationship between
Nepal’s king and its Constitution is a matter that needs to be
approached squarely and honestly.

The king is either of three
things: a white elephant too expensive and archaic to maintain
(the answer of republicans), a work elephant with extraordinarily
useful power (the royalist answer), or a cherished creature of
mainly symbolic value who bests functions as a unifier (probably
the answer of choice for many in the pro-democracy camp).

It is clearly the royalist
answer that best suits the current Constitution. Those who find
the state of emergency a deplorable attack on human rights and
at odds with democratic norms and values are making a moral,
not a legal, argument. A call to legally and peacefully revisit
the Constitution could be the best way to address not only the
international community’s concern about human rights in Nepal,
but also to bring the Maoists to the negotiating table. If they
can save face and escape their current impasse, in which they
are unlikely to triumph and unlikely to be defeated, all of Nepal
will benefit.

Of course, any proposed remedy
such as a constituent assembly or a referendum could produce
great change, or very little change. But it would at least produce
a majority verdict. In a true democracy, it’s possible for everyone
to become a winner in the long run precisely because we accept
the possibility of being gracious losers in the short run. In
a democratic decision about the Constitution, many would find
ourselves in the minority camp. But at the end of the day, we
would know that we have fought the good fight–not in the jungles
with weapons that destroy our brothers and sisters, and not on
the streets in yet another round of aimless protest, but at the
ballot box where ideas peacefully and honestly contend.

Or we can keep ignoring the
elephant in the parlor, and our house will be uncomfortable for
a long time to come.

Hom Raj Acharya is a poet, writer, and literacy activist
from rural Nepal who founded the grassroots nonprofit Books
in Every Home
, and promotes literacy in Washington DC as
an education policy analyst with the D.C. government.

Sally Acharya is an American journalist who has
worked in Kathmandu . A version of this article originally ran
at FreeNepal.org, They
can be reached at acharya@american.edu

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