Editorial»
‘We are drifting towards republic’
JAN 12 - Former Chief Justice Biswo Nath Upadhyaya had drafted the constitution after the restoration of democracy in 1990. He had also drafted the Muluki Ain (civil code) 1964 during the late King Mahendra’s autocratic regime.
He had differences with the late King Birendra while preparing a draft paper of the 1990 constitution.
Unwavered in his conviction, Upadhyaya remained in the topmost position in Judiciary from 1991 to 1995.
Born in 1931 in Sarlahi in the eastern region, Upadhyaya began his career as a practising lawyer at the Law Commission in 1957.
Upadhyaya talked extensively on a wide range of issues with Ghanashyam Ojha of The Kathmandu Post at his residence. Excerpts:
TKP: As a citizen, how do you assess the current Nepali political situation?
Upadhyaya: Due to prolonged confrontation between the political parties and the King on the one hand and the conflict between the Maoists and the King on the other hand, we are drifting towards republic. The national political situation is deteriorating every day.
TKP: Who do you think is responsible for this deterioration?
Upadhyaya: I must say political parties are responsible for the current situation. They never realised the authority provided to them by the 1990 constitution and unnecessarily went to the palace for the resolution of even minor problems. They could never be rid of the traditional mind-set to look at the monarchy.
But the palace was also always seeking the opportunity to weaken the parties and grab power. It is the authoritarian nature. When the parties lose their public support, it exploits the opportunity. So did our King.
TKP: Does it mean that our palace was ever preparing to intervene into political situation and grab power once it slipped off its hand?
Upadhyaya: The King, from the very beginning of democratic process, violated the constitution. While nominating members in the Upper House and in Raj Parishad Standing Committee, the King appointed his henchmen in those bodies which, in fact, should have been done on the Prime Minister’s recommendation, according to the constitution. The political parties only tried to appease the palace for political gain. When I had gone to submit the draft copies of the current constitution to the palace, one of the palace secretaries had asked me, “how long do you think this system and the constitution will go? I had taken it lightly. But later the King’s activities showed there was foul motive in the secretary’s remarks. Even in the case of the army, the constitution formed a defence council with the majority of parliamentarians to operate this body. But the political parties never asserted their role and let the king operate such sensitive organ. They could have strongly asserted or have gone to the public on the issue. These were some incidents which show the palace was seeking to play its role.
TKP: Do you think the authoritarian power will remain ever strong in Nepal?
Upadhyaya: The strong base of authoritarian power is the army. But one day it falls like the house of cards. You can see the situation faced by the Iran king. He, in the later years of his regime, even failed to believe his own army and brought his bodyguard from foreign land. He fell down. It is the nature of the authoritarian power. So you should wait to see it in Nepal too.
TKP: How have you taken the king’s repeated remarks to remain as a constructive monarch?
Upadhyaya: Constructive? The word itself is quite vague. Our definition of constructive is different from the King’s. But the one, who seeks his role, should take responsibility of all the problems. People have the right to censor a constructive person’s wrongdoings, his behaviour should be transparent; people have the right to know and see his activities, listen to and discuss on them. But our king cannot tolerate his criticism. So how can he be a constructive monarch?
TKP: How do you see the role of Raj Parishad in recent days?
Upadhyaya: Raj Parishad is a worthless institution. It has only formal functions like declaring the successive monarch after the demise of the king and it forms a council to rule the state if the existing king is politically disabled.
According to the constitution, the Upper House is the ruling body of the Raj Parishad. The Upper House chairman oversees its activities.
Even the late king had asked me for an advisory body but I had suggested him that the cabinet could be the best advisory body for him in a parliamentary system. It was frequently discussed during that time. But I kept on objecting to it. Later the king formed the Raj Parishad. I was surprised. Who gave him the authority? It could not be formed without the consent of the cabinet. Such body should not have been formed. I even attended the first meeting of the Parishad as an ex-officio member. The meeting discussed on the government policies of privatisation and open market economy. It expressed the opinion that privatisation and open market economy were against the Nepalis. But I objected to it and questioned on their authority to discuss on the government policies in parliamentary system. Since then I stopped attending the meeting. Parties could have objected to it. Now Raj Parishad is becoming more political and working in favour of authoritarian power going beyond its limitations.
TKP: What is your comment on the King’s latest meetings with the leaders of political parties, as a part to resolve the current political stalemate?
Upadhyaya: The King’s meetings with leaders of political parties are good. But his activities are quite contrary to his words. The King has given seven-point programme to the political parties and wants the parties have consensus on it. But how is it possible? The real problem is different. Any government can meet all these programmes. These are secondary things.
The late King Mahendra also used to meet the leaders of political parties to de-distract the leaders from the real problem. It looks like resumption of Mahendra’s legacy.
If the King is sincere to solve the problem, why did he change Lokendra Bahadur Chand for Surya Bahadur Thapa? So he may be thinking to get the taste of another Bahadur. It does not solve the problem.
TKP: So what could be the solution to the current crisis?
Upadhyaya: Sher Bahadur Deuba had dissolved parliament with the condition that he would hold polls within six months. If the purpose was not fulfilled, the House should be revived. It’s natural. Even article 127 of the constitution can do it. The purpose of article 127 is to solve difficulties that may arise in the smooth functioning of the constitution. But here the article has suspended the entire constitution. What a misfortune!
TKP: There is an age-old fight for democracy here. Some people say, democracy and constitutional monarchy cannot go together in Nepal. Do you subscribe this view?
Upadhyaya: When we were drafting the 1990 constitution, the late King Birendra once asked me and the then Prime Minister Krishna Prasad Bhattarai that he would go for referendum to seek his popularity among people, as he was dissatisfied to remain purely a constitutional monarch like that of England. I then told the King that the snap poll and written recommendation received from seven thousand people regarding his status in the constitution, which was under drafting process, showed that there was barely three per cent support for monarchy. When I said this it to the King, he kept quiet. We had also thought of changing the national anthem. But we kept it as a respect for the King. We had maintained a balance in the constitution and given only formal rights to the King.
But the King did not follow it. Instead he made the people to have faith in him. If the ‘popular’ late King Birendra was so unpopular, so you can make a guess about the popularity rating of King Gyanendra, who wants to have a strong say in the state affairs.
TKP: So what is the future of monarchy in Nepal?
Upadhyaya: The late King Birendra was adaptable, he used to listen to everybody. But the current King looks more adamant. So it depends on the future role of the monarchy. Otherwise, knowingly or unknowingly we are going towards republic. It cannot be stopped now.
TKP: Do you think monarchy is essential in our democracy?
Upadhyaya: No. A republic is the perfect democracy. But when we talk about republic, we should be much more careful. Our leaders’ temperament cannot be predicted. It is a great challenge to sustain a republic. If our leaders express such commitment and confidence, we can go for a republic.
TKP: How do you analyse the Maoists’ so-called connection to palace and India?
Upadhyaya: The authoritarian power is always in search of the force that can weaken or destroy the parliamentary forces. So it is natural that the palace might have utilised the Maoist force. But we have also to analyse drawbacks in parliamentary forces for the Maoists’ compulsion to go to jungle.
I don’t see Maoists’ connection with India. The Indian government is already suffering from the Maoists and other terrorist forces in its own land. So why does it promote the Maoists in Nepal? But there is possibility that India wants many of the treaties signed by Nepal in the light of the Maoist problems.
TKP: So how can the Maoist problems be resolved?
Upadhyaya: There is no alternative to negotiation. Nor is there any alternative to adopting flexible approach. The Maoists should give up their demand for constituent assembly. And the government should listen to their other demands and ensure their participation in national politics through negotiation.Posted on: 2004-01-13 04:06
Headlines
Advertisements
