On 1 February 2005, Nepal’s King Gyanendra dismissed the government led by Prime Minister Sher Bahadur Deuba. He justified this decision by invoking Deuba’s failure to hold elections and his inability to tackle a Maoist uprising nearing its tenth anniversary. Even as the king’s televised announcement came to a close, security forces seized and imprisoned leaders of the Deuba government, key political party figures and human-rights activists. The king subsequently constituted a solidly royalist ten-member Council of Ministers under his own chairmanship and imposed a state of emergency. Sweeping restrictions on the press followed, with army officers appearing in Kathmandu’s editorial rooms to vet copy. In addition to the right to free expression and publication, rights to peaceable assembly, information and privacy and the right against arbitrary detention were suspended.
The state of emergency was formally lifted on 29 April. Nevertheless, notable political leaders and human-rights activists remain under arrest, decrees curbing freedom of the press are still in place, and peaceful political protest remains disallowed. Some activists are still in exile, leery of returning to Kathmandu. Most importantly, significant changes have been brought about in the structure of government and there is large-scale use of ordinances to move matters forward in the absence of Parliament and an elected government. The king’s 29 April announcement, in short, has had no internal effect, suggesting that it was intended solely for international consumption, as part of an effort to mend the palace’s credentials. For all practical purposes, then, Nepal remains in the state of emergency announced on 1 February. Any serious discussion of political possibilities for Nepal’s short-term future, therefore, must treat the state of emergency as de facto in force.
The emergency has done greatest damage in the country-side. Relative quiet in Kathmandu contrasts with an ominous silence from outside the valley. There, the conflict between the Royal Nepal Army (RNA) and the Maoist insurgency has intensified. Without the restraints imposed by an active human rights community and an alert press – as both sectors remain shackled and unable to fulfill their functions – the combatants now fight free of compunction. In the meantime, the government has been culpable of supporting lynch mobs that carry out attacks on alleged Maoists, reminding one of the move to create village militias a year ago, which was thought to have been abandoned after the public outcry against it. The Maoists continue to inflict brutal and sadistic punishments on those who refuse to acquiesce to their control, and have of late also been guilty of attacks on public transport that have killed scores.
It is thus Nepal’s rural populace that suffers the direct consequences of a state of emergency and its chilling effect on speech: a deepening militarization of a conflict that is unlikely to be settled by arms alone.
The king’s imposition of a state of emergency, with and then without a formal imprimatur, lacks constitutional sanction. It marks a rupturing of an already-frayed constitutional order. Nepal’s 1990 Constitution does not envisage the imposition of a state of emergency without parliamentary approval. King Gyanendra did precisely that on 1 February. Article 115, which outlines the procedure for imposing emergencies, was violated in three key respects. First, Article 115 requires post hoc ratification by the House of Representatives. No Parliament has met since the May 2002 dissolution of the House of Representatives, a move Prime Minister Sher Bahadur Deuba certainly made with the royal palace’s blessing. Second, the right to habeas corpus, which is constitutionally guaranteed even in times of emergency, has been continuously violated. Third, changes in fundamental structures of government, and the creation of a Council of Ministers chaired by the king himself, are neither anticipated nor permitted. Article 115 thus cannot justify the king’s 1 February decision.
The putative authority for the king’s acts instead rests on a lone ambiguous phrase in Article 127 of the 1990 Constitution. This allows the king to issue necessary orders to remove “any difficulty” arising in implementation of the Constitution. Article 127, however, stipulates that any such order be “laid before” Parliament. Evidently, there has been no such ratification. Nor can the coup be said to implement the Constitution. The king has denied a gamut of basic rights and radically restructured political authority outside the Constitution’s bounds. Such changes run starkly against the letter and spirit of the document he claims to defend.
The state of emergency is merely the culmination of growing contradictions between Nepal’s Parliament and the palace since the adoption of 1990 Constitution. That document reconciled only uneasily a long history of royal power with the new democracy. Throughout the 1990s, the palace pushed against democratic control, particularly over the RNA and the appointments of officials to key posts. Since October 2002, when King Gyanendra dismissed the elected government led by Prime Minister Deuba by invoking Article 127, the palace had increasingly asserted power with barely any pretense of democracy, the monarch appointing and dismissing three prime ministers in quick succession. The royal takeover, hence, signals not a new direction in Nepali politics but the entrenchment of an extra-constitutional position. Far from a radical shift, the current state of undeclared emergency is merely the visible and manifest sign of a longstanding desire on the part of King Gyanendra to wield power as he sees fit. The questions presented by the continuing state of constitutional crisis revolve around how deeply the king intends to transform Nepal’s political infrastructure, and whether he will allow any vestige of democracy to remain.
Coups and metastasis
A constitution is a set of ground rules binding both elected and unelected branches of government. The document embodies a manifest precommitment by all future governments to a set of higher governing principles and basic rights. It bars transitory majorities and factions from entrenching themselves. It is also a promissory note to all citizens, especially members of vulnerable communities, that their fundamental rights will be respected.
A state of emergency, justified on grounds of a threat to constitutional principles, is a mechanism that allows temporary circumvention of such commitments. When ordinary processes of government are too cumbersome to respond to a threat such as an uprising with sufficient alacrity, a state of emergency facilitates expeditious response. The declaration of a state of emergency thus should be conservative in the best sense of the word: it is a vehicle to safeguard the elementary lineaments of the constitutional order. The ancient Roman constitution, for example, allowed the Roman Senate to appoint a dictator for up to six months. The dictator could authorize a suspension of rights and legal process in order to deal with a threat of invasion or insurrection. According to one account, the measure of dictatorship was used 95 times over 300 years, but without destabilizing the senatorial model of governance.
The risk inherent in states of emergency is that, rather than being used to conservative ends, they become means for changing the political order. Hard-won liberties may be eroded. Checks on executive power may slip into oblivion. Minorities may be stigmatized and harmed. New executive powers may be authorized, and a transient leader may entrench himself in the seat of power. The successful Roman model contained important internal restrictions against this risk. There was a separation between the body that imposed the emergency (the Senate), and the person who exercised emergency powers (the dictator). Like Cincinnatus called from his plow, the dictator was archetypically a person of impeccable public reputation with no aspiration to future public office. The Roman model also provided a framework that made the trajectory of an emergency predictable: The constitutional fabric specified in advance the powers of the dictator, the limits of these powers, and how long the emergency would last.
The present situation in Nepal lies at quite another pole. Here, it is the king who has imposed the state of emergency (and continued with it, even if not in nomenclature) and, as the chairman of the Council of Ministers, wields the powers thereby created. Unlike the Roman Cincinnatus, the king is not without aspirations to continued power, for himself and for his family. In fact, the 1 February royal takeover seems to have been carried out in order to continue on the throne with enhanced authority. The incentive to amend the structures of government is not lacking either. Indeed, subsequent actions by the king, such as the creation, with dubious intention, of a Royal Commission on Corruption Control, and a slew of measures taken under the umbrella of ordinances, in the absence of a law-making Parliament, indicate a palace bent on changing the form of Nepali government.
The present state of de facto emergency, then, is open to transformative, as well as conservative, ends. The king, broadly speaking, has two ways of achieving structural change in the present context while retaining a notional democratic framework. These options are illustrated by the experience of Pakistan and the United States. In Pakistan, change has been imposed externally on constitutions by means of army coups and judicial ratification. The United States has suffered from a creeping metastasis of emergency powers, initially contained within narrow legislation. Pakistan’s experience shows how an arrangement introduced by a coup can be putatively transformed into a ‘legitimate’ government. The United States’ history shows that while a legislature is an essential bulwark against executive over-reach, it is a requirement that a legislature be jealous of its prerogatives and actively resist presidential domination. In both cases, the consolidation of power in the executive branch has meant the weakening of the legislature and the courts. Ultimately, the greatest losers have been the people.
Pakistani revolutionary legality
On four occasions during its half century-long history, Pakistan’s efforts towards democracy have been stymied by the suspension of elected democratic bodies. In 1954, Governor General Ghulam Muhammad dissolved the Constituent Assembly even while it was drafting the nation’s first constitution. This constitution, approved in 1956, lasted only two years: on the morning of 8 October 1958, General Ayub Khan, abetted by President Iskander Mirza, staged another coup.
Ayub’s successor, General Yahya Khan, attempted the creation of a façade of democracy and held national elections in 1970. His refusal to recognise the electoral triumph of East Pakistan’s Awami League led directly to the horrors of the 1971 war.
Shamed into retreat after the debacle, the military remained in the barracks during Zulfikar Ali Bhutto’s seven years in office. On the night of 4 July 1977, however, Gen Zia-ul Haq seized the reins of power for the army yet again. The dictator’s mysterious death in a plane crash opened a window to another rough decade of fractious democracy, with the Muslim League and the People’s Party now in presidential robes and now in defendants’ shackles as they bounced between elected office and the criminal dock, where both parties’ leaders faced corruption charges. This democratic interlude ended in October 1999, when Gen Pervez Musharraf removed Prime Minister Mian Nawaz Sharif.
Time and again, emergency rule has been legitimised and consolidated through judicial ratification of extra-constitutional action, followed by constitutional amendment. Pakistan’s existing organs of democracy have thus participated in the creation of ruptures in the rule of law. The pattern was set during the conflict between the Constituent Assembly and Governor General Mohammad in the 1950s. Confronted with the Assembly’s attempt to strip him of the power to dismiss ministers, the Governor General dissolved the Assembly on 25 October 1954 and declared an emergency. The Sindh High Court upheld a challenge to the closure of the Assembly, but Pakistan’s Supreme Court, led by a close ally of the Governor General, Chief Justice Muhammad Munir, subsequently rejected that challenge. The Court first curbed dramatically the Constituent Assembly’s powers and then invented from whole cloth the legal doctrine of ‘state necessity.’ This unprecedented doctrine amounted to a rupture in the constitutional fabric that allowed the executive to take whatever extra-constitutional action it saw fit. The Supreme Court’s ruling created an open-ended escape hatch for impatient executives.
To justify Ayub’s coup, Chief Justice Munir conjured the doctrine of ‘revolutionary legality’. Under the doctrine, courts must endorse a coup that “satisfies the test of efficacy and becomes a basic law-creating fact.” Such a formulation clearly implied that might was right. Although ‘state necessity’ and ‘revolutionary legality’ had a similar effect in practice, the former at least preserved the fiction that the constitution remained in existence. By contrast, the new doctrine allowed the executive to bypass the constitutional order, giving rise to questions about whether a constitution was worthwhile in the first place. Only after Yahya’s fall from grace, subsequent to the 1971 war, did the Supreme Court back away from these shameful doctrines for a period of time. State necessity, however, was invoked again to vindicate the usurpations by both General Zia and General Musharraf.
In its decisions ratifying Zia’s and Musharraf’s coups, the Supreme Court took the surprising additional step of allowing the military ruler not only to pass necessary laws, but also to make constitutional amendments. Neither Zia nor Musharraf was shy about exercising this extraordinary authority. For example, Musharraf’s 12 August 2002 Legal Framework Order purported to make changes to 29 articles of the 1973 Constitution. While mandating changes to political parties’ rights and the structure of the legislature, the Legal Framework Order also stated: “If there is any necessity for any further amendment of the Constitution or any difficulty arises in giving effect to any of the provisions of this Order, the Chief Executive may make such provisions and pass or promulgate such orders for amending the Constitution or for removing any difficulty as he may deem fit.” The parallel to Article 127 of Nepal’s 1990 Constitution, at least as interpreted by the Narayanhiti Royal Palace in Kathmandu, is clear.
Pakistan’s Supreme Court made token efforts to limit the period of emergency rule by generals Zia and Musharraf. In 1977, the Court invoked and relied on Zia’s promise that elections would be held as soon as possible. But no polls were held until February 1985, and the court did nothing in the interim to hold Zia to his word. The Supreme Court has been similarly ineffective in restraining Musharraf. Ratifying the October 1999 coup, the court cautioned Musharraf that he had only three years before he would be required to hold general elections. Yet, in April 2002, the general announced a referendum on whether he could hold the office of President for five years. The court rejected legal challenges to the referendum, even though it violated the spirit, if not the letter, of its own ratification of the October 1999 coup.
Pakistan and Nepal have telling similarities that make the Pakistani experience difficult to ignore for those concerned about Nepal’s future as a democratic state. First, as in Nepal where king has justified his coup as a necessity in order to tackle the raging Maobadi rebellion, interruptions of democracy in Pakistan are justified in terms of security, stability, and the national interest. Internal unrest, in Balochistan and the North West Frontier Province, and an external enemy in the form of India loom large in the Pakistani army’s public justifications for the abrogation of democracy. Indeed, the Pakistani Army, through quiet support for sectarian and jihadi groups, has created a situation of simmering, low-level crisis, in which some threat is always available as justification for unilateral, anti-democratic action.
In Nepal, rather than the RNA, it has been the palace that is bent on highlighting and exaggerating the threats to the nation state in order to justify King Gyanendra’s intervention in democratic politics. Furthermore, there have been unconfirmed allegations that Kathmandu’s palace nurtured the infant Maoist rebellion, perceptively recognizing a lever to destabilize the 1990 democratic dispensation. Whether or not these rumors are true, they do provide some insight into the dynamics of recent Nepali politics: the palace has found in the Maoists an ideal foil for its anti-democratic aspirations. Even as the Maoist threat was allowed to escalate out of all manageable proportion, the palace used the rebels successfully to augment its own power considerably.
Second, the Pakistani army has extended its influence by seizing control of commercial activities and resources. The army has a well-documented, substantial stake in the nation’s economy through ownership of large amounts of prime real estate and commercial enterprises and services. The RNA is a novice in this field. It has a welfare fund from UN peacekeeping earnings and runs a few commercial enterprises such as petrol pumps, but the attractions of the Pakistani model are clear. In 2004, it announced its intention to open a military bank. It also appears that the RNA is keen to enter the development sphere, which would be a further dangerous precedent. The deeper the RNA’s stake in commerce and development, the harder Nepal’s transition back to accountable democracy will be.
Third, the absence of democratic institutions in Pakistan has allowed a dramatic shift of political power towards the army. In Nepal, such a shift has already taken place in the districts, where the captain, major or colonel is the de facto ruler whose writ runs through the hierarchy in the civilian administration, the police force and government services. The politicians are thus already far sidelined, and if the trend continues, a shift of overt authority from the palace to the barracks cannot be ruled out. For the first time ever, the RNA is deployed countrywide and enjoys a semi-administrative status. At some point, the RNA may find it more effective to exercise direct rule, relegating the king to a merely symbolic role – so many formerly unthinkable departures have taken place in Nepal in the last couple of years that this cannot be ruled out. Advocates for democracy ought to emphasise this possibility in their campaign for the restoration of democratic institutions, including the Parliament and the office of prime minister. The fact is that without a prime minister in place, the king is far more vulnerable to an army putsch and the present incumbent may be unwise to believe that historical loyalties to the dynasty will be enough to keep military ambitions at bay.
Finally, Pakistan’s military rulers have relied on crucial external support in their efforts to buy off, eliminate or marginalize opposition. Zia’s coup preceded the 1979 Soviet invasion of Afghanistan, which made Pakistan an invaluable United States ally and conduit for arms. Afghanistan, like Kashmir, also provided a forum and a release for radical groups that otherwise might have disrupted the state. Two years into Musharraf’s troubled regime, the United States again sought Pakistan’s aid in Afghanistan following the events of 11 September 2001. American aid to Pakistan has not been limited to the military sector. Pakistan has also benefited from favourable trade facilities from the United States. Multilateral institutions, such as the Asian Development Bank, have been notably more generous toward Pakistan since its re-energized alliance with the United States. External relations, in short, have been an important prop against the return to democracy in Pakistan. In Kathmandu, King Gyanendra’s regime is deeply reliant on external aid for the whole spectrum of state activity, from budgetary support to military assistance and development activity. Despite broadly hostile international reactions to the 1 February coup, the international community’s support for the democracy movement cannot be taken for granted. The fact is that Pakistan has shown open support and China would seem to be willing to go along with the royal dispensation. Western democracies, for their part, have been ambivalent, repeatedly asking the opposition political parties to believe in the king’s words, and in recent months, the United States ambassador in Kathmandu has been making supportive noises of February’s royal move. While the Indian Foreign office has indicated its distaste for the coup, a combination of players from the Indian Military to erstwhile Indian royalty seem to want to support the king, either due to an exaggerated fear of a Maoist victory or to traditional sympathies towards a remaining Southasian monarchy. As time passes, it seems likely that strategic and geopolitical necessities will shore up international support for the palace, especially in the medium term.
In summary, internal crisis, a powerful military and external support helped set the stage for overt constitutional manipulation in Pakistan. All these elements exist today in Nepal as well. Strikingly, manipulation by the army in Pakistan was accomplished with the open acquiescence of the courts, which fashioned constitutional loopholes to allow fundamental transformation of the state. The Nepali judiciary has never been a bright spot in the nation’s governance, and has singularly failed to enforce limits on the emergency powers granted by Article 115. A recent address by the Chief Justice of the Supreme Court of Nepal, given to a gathering of fellow judges in Australia, does not provide much reassurance. The history of Pakistan’s weak constitutionalism must be seen as a warning bell for the future of democracy in Nepal.
Legislative delegation and silence
Body blows to the constitutional framework achieved by coups are not the only means by which a state of emergency can be exploited. The rule of law can almost as easily be eroded from within. Without changing the constitutional framework, legislation can open fissures through which unchecked executive power can be projected. King Gyanendra has already shown some inclination to this mode of change. New, post-coup laws, for instance, include an anti-corruption ordinance clearly targeted at independent-minded politicians. An ordinance has also been proposed that would impose further restrictions on the press, and sleight of hand can be seen in the reconstitution of the National Human Rights Commmission and in the creation of new administrative positions throughout the country. Although the experience of the United States does not have immediate parallels with the present situation in Nepal, it does illustrate some of the risks inherent in legislative acquiescence to emergency powers.
The United States has the world’s oldest written constitution with an exquisitely wrought system of checks and balances between the executive, legislative and judicial branches of government. Since 1791, it has contained a Bill of Rights that protects freedom of speech, religious liberties, and various rights against governmental interference in the lives of the citizenry. Since February 1803, the Supreme Court of the United States has asserted, largely undisputed, the right to enforce those constitutional limits against the executive as well as the legislature through judicial review. The US Constitution grants no emergency powers. The sole provision applicable in times of “Rebellion or Invasion,” with the sanction of Congress, envisages the unavailability of habeas corpus writs, which are used to challenge detention. Against the backdrop of such a relatively successful constitutional order, however, the past fifty years have witnessed a surprising corrosion of checks on executive power, sanctioned from within by the Congress.
This past century’s international conflicts brought dramatic shifts in the traditional balance of power between the three branches of the United States government. Faced with threats posed by Japan, Germany and later the Soviet bloc, the American executive branch sought broader powers, particularly in the arena of foreign affairs. In 1936, the Supreme Court commented that the President was “the sole organ of foreign affairs.” This comment, which gets only scant traction from the text of the Constitution, proved a warrant for more than 50 years of consolidation of presidential power and an excuse for legislative deference. Indeed, the extraordinary claims of plenary executive authority made after the 11 September 2001 attacks on New York and Washington DC to ignore the Geneva Convention, and to violate well-established federal and international law on torture, flow directly from that judicial comment. These aggressive assertions of presidential power, which openly flout elementary norms of human rights, are antithetical to the structure and purpose of the US Constitution. They are tenable only because of continuous presidential over-reach in the area of foreign affairs after World War II.
Since 1950, the US Congress has routinely passed laws on domestic policy matters that have been enforced by the executive in a predictable, public manner. Indeed, most public attention has focused on the mundane details of such legislation and the concomitant executive execution. Parallel to this steady, boring diet of law-making, however, Congress has enacted a series of acts granting the president sweeping emergency powers. Largely out of public sight, the executive has thus accrued an alarming body of emergency powers, mostly for use in the foreign affairs realm.
The trend began after World War II. In April 1950, the president’s National Security Council issued a comprehensive statement of military and political strategy called Paper 68. This envisaged “an indefinite period of tension and danger” with the Soviet Union. Eight months later, President Harry Truman endorsed the analysis contained in Paper 68 and declared a state of emergency in response to the escalating confrontation in Korea. That national emergency remained in place for almost twenty-five years. Thus, even as the normal legislative process carried on, a continuous emergency, largely unnoticed by either Congress or the public, enabled a variety of extraordinary presidential actions. This included President John F Kennedy’s embargo against Cuba in 1962.
Although emergency powers mostly concerned matters of foreign affairs, President Richard M Nixon also invoked these powers during a postal service strike and in a balance of payments crisis in the early 1970s. Foreign affairs matters also impinged directly on domestic civil rights. For example, the 1950 Internal Security Act authorised a person’s detention if the government had “reasonable ground” to believe he “probably” would commit or conspire to commit acts of espionage or sabotage. Such powers anticipated by half a century the mass detentions of Muslims and Southasians in the aftermath of the 11 September attacks.
Legislative states of emergency thus weakened the constitutional framework of law-making by joint action of the Congress and the President. They allowed the executive instead to act without direct congressional sanction. Rather than opposing this dramatic and unprecedented rise of executive power, the legislature continued through the 1970s to enact statutes that delegated greater and greater authority to the executive. By the 70s, Professor Jules Lobel of the University of Pittsburgh had counted 470 acts of Congress authorizing emergency powers; none of the emergencies declared under these acts had been terminated before 1976.
Efforts in the same decade to curtail presidential power, such as the 1973 War Powers Resolution and the 1976 National Emergencies Act, came too late and were too weak. Thus, the provision of the War Powers Resolution that required the President to report the deployment of troops after 60 days has been flouted in the case of Southeast Asia, Iran, Lebanon, several Central American states, Grenada, Libya, and the Persian Gulf. Congress simply failed to enforce its own will and this acquiescence further weakened its authority. The National Emergencies Act terminated all extant emergencies, but did nothing to organise the massive grants of authority that the executive had accumulated. Despite the Act, the president still uses emergency powers regularly to block foreign assets and to bar travel of US citizens to certain countries. Consultation and reporting procedures in the Act regarding the use of emergency powers have been largely diluted or ignored: Congress simply fails to meet to consider whether an emergency declaration should continue in force. Indeed, the US Constitution is functioning and vigorous. Yet, it also has ‘law-free zones’ within the framework of governing laws. These anomalies in the constitutional order are the fruit of an internal erosion of the rule of law, aided by 50 years of legislative delegation and silence.
What is the lesson of the United States experience as far as Nepal is concerned? As the major political parties have recently recognised, the restoration of the Third Parliament, dissolved in May 2002, is a vital starting point for recreation of democratic rule in Nepal. Without a sitting House of Representatives, scant progress towards democracy is possible. Nevertheless, restoration of legislative supremacy is no all-encompassing panacea. A legislature subservient to the palace, or merely fearful for its own physical safety, is no check against the dangers of the state of emergency.
The weakness of successive governments and prime ministers since the restoration of democracy in 1990 when it came to challenging the palace in several spheres must also be seen as the failure of the Nepali Parliament and parliamentarians. Much of this inability-to stand up to the palace may have to do with internal wrangling within and between parties, but surely a lot also has to do with an unwillingness to confront the king.
A restored parliament must have the ability to reject any pressures from the palace; without such freedom, the state of emergency could be continued in another form, silent and insidious. Moreover, legislators must understand the value and purpose of the rule of law. Restoration of parliament must be accompanied by discussions of how civil and political rights can be protected. International pressure, particularly monitoring by the UN, may be critical in this regard. In short, advocates for Nepali democracy must attend as much to the conditions under which democratic institutions are restored as to the fact of restoration itself. The weakening of Congress and the uninterrupted growth in the powers of the presidency in the United States serves as a warning of the dangers that lie ahead.
The location of sovereignty
In taking power on 1 February without constitutional warrant, King Gyanendra purported to accept and to protect the normal constitutional order, while at the same time standing outside and violating that order. That the king saw a need to abrogate parts of the 1990 Constitution shows that he recognizes the continuing existence of that legal regime. But no constitutional or legislative rule allows him to stand outside the rules or to change them. The king thus sought to benefit from being seen as the protector of the Constitution, while ignoring and discarding its most fundamental elements. Even though the formal state of emergency has ended, this tension between the norms observed in practice and the norms celebrated in theory persists.
The king’s position is not merely paradoxical and hypocritical: it is typical of rulers who are attempting to seize control in the face of a persisting constitutional order. In the formulation of the German legal theorist Carl Schmitt, “Sovereign is he who decides on the state of exception.” The ‘great disorder’ of the Maoist revolt has enabled the palace to carve out a new exception, and thereby to create the ‘violent order’ of a new, royal constitutional dispensation. The royal takeover was and is a gateway, then, to a new constitutional order. The palace can either refashion that order in its totality, as Pakistan’s generals have done, or erode it quietly from within, as has been happening in the United States. The palace is most likely to seek a way to consolidate a patina of rule of law while maintaining the seething disorder of emergency within. After all, democracy, even if only skin deep, is the sine qua non of legitimacy in the post-Cold War world and of George W Bush’s second term in office.
This risk is also an opportunity. Nepal’s political parties have floundered during the years of democracy under the weight of corruption and inept leadership. Judicial independence remains only an aspiration. The present crisis demands a blostering of the rule of law, as embodied in the 1990 Constitution, against frontal assault of the kind seen in Pakistan. But it also requires the slower, more assiduous ground-work of building truly democratic parties, an engaged civil society, and accountable institutions. It is with these structural changes that the quiet erosion of the legislature’s powers that is so starkly visible in the American experience, can be prevented in Nepal. The international community has the job of supporting the citizens of Nepal in this process of transformation.
Advocates for democracy must take advantage of the Kathmandu palace’s notional commitment to democratic rule, and continue to insist on the restoration of Parliament and other democratic institutions, such as local government in villages and districts, whose establishment was an example of Nepal’s successful parliamentary exercise between 1990 and 2002. Advocates are also aided by the fact that King Gyanendra’s arguments in favour of direct rule are exceptionally weak, and fundamentally in tension with the 1990 Constitution. Nor does the king have strategic considerations on his side: the seizure of all executive power has opened him up to tremendous public criticism. As the RNA increases it power, there may come a time when some officers decide that he is superfluous. While an all-out military coup against the monarch may not be feasible in the immediate term, a very unstable situation could be created with a dissatisfied military amidst the vulnerable geopolitical situation of Nepal, over-shadowed by an all-powerful and nervous India. Looking beyond the medium term, it would seem to be in the palace’s narrow interest to restore democratic institutions as a counterweight to all the other forces it may have unleashed on 1 February.
Yet it is not enough to insist on the formal institutions of democracy alone, although they are an essential part of the way ahead. Once in place, a legislature must not only function, but its members must be free of coercion and influence, must be able to shift power back from unelected institutions to representative bodies as envisaged by the Constitution, and must remain committed to achieving that goal. The challenge facing Nepal involves the creation of a culture of democracy. Only once this culture is embedded in functioning and representative institutions will Nepal start back on the trek towards the democratic self-government envisaged in the 1990 Constitution but so long delayed.