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NepalLegal Basis under the 1990 Constitution
The promulgation of the constitution in November 1990
opened a
new era in Nepalese civil-military relations. Under the
Ranas and
the two monarchs of modern times, King Mahendra Bir Bikram
Shah Dev
(reigned 1955-72) and Birendra Bir Bikram Shah Dev
(reigned 1972-
), military and national defense decisions were the sole
prerogative of the palace, acting on the advice of a small
coterie
of retainers and senior military commanders. Decisions
were not
ordinarily subject to the approval of elected bodies other
than the
narrowly based Rashtriya Panchayat, or National Panchayat,
which
served as a rubber stamp for the palace
(see The Panchayat System under King Mahendra
, ch. 1;
The Panchayat Constitution, 1962
, ch.
4).
Under the new constitutional order, the king retains
his
traditional authority as the supreme commander of the
armed forces.
The king, however, is not the sole source of authority in
Nepal but
rather a symbol of national unity. In a major break from
past
constitutional experiments, sovereignty is vested in the
people,
not in the person of the king. The distinction is
important in that
the military no longer acts solely as an instrument of the
king but
also is in principle subordinate to the authority of the
popularly
elected Parliament
(see The Constitution of 1990
, ch. 4).
During the protracted discussions that occurred in 1990
over
the outlines of the new constitution, King Birendra,
fearing that
a future civilian government might radically undercut the
military's prestige and with it the monarch's power or
very
existence, reportedly insisted on retaining ultimate
authority over
the military. Having to contend with independent centers
of power
that were beyond his direct control, Birendra realized
that the
military was his only reliable institutional base of
support.
Military commanders, for their part, feared that civilian
politicians might attempt to politicize the army and
undermine
discipline. Consequently, the 1990 constitution represents
a
compromise between the king, who still retains many
avenues to
power should he choose, and a newly empowered civilian
government.
Several provisions circumscribe the palace's previously
unfettered right to employ the army as it sees fit. Unlike
the
legislature under the 1962 Panchayat Constitution,
Parliament has
real authority to determine and approve the annual defense
budget.
Although the role is not specified in the constitution,
the
civilian minister of defense oversees the day-to-day
operations of
the military. Conceivably, an assertive Parliament could
hobble the
king's authority over the army by denying funds.
Day-to-day
decisions affecting national security and military affairs
are
implemented by the king only with the advice and consent
of the
elected civilian government.
The power to appoint a chief of army staff, another
traditional
royal prerogative that afforded the palace direct control
over the
military, also is subject to the recommendation of an
elected prime
minister. This provision has the potential to precipitate
a
constitutional crisis should the king refuse the
recommendation of
the prime minister. The constitution offers no guidance
should such
a disagreement arise. In the first test of this clause,
however,
the newly elected Nepali Congress government of Girija
Prasad
(G.P.) Koirala assented to the appointment of General
Gadul
Shumsher Jang Bahadur Rana to head the Royal Nepal Army
within days
after assuming office in May 1991. The prime minister, the
king,
and the army were anxious to demonstrate that the new
constitutional order was working.
Article 118 of the constitution mandates the formation
of a
three-person National Defence Council consisting of the
prime
minister, who chairs the body; the defense minister; and
the chief
of army staff, the nation's senior uniformed officer.
According to
this provision, the king "shall carry out the
administration and
deployment of the Royal Nepal Army on the recommendation
of the
National Defence Council." Although as of late 1991 there
was no
clear indication of the role this hybrid body performed,
its
formation underscored the insistence of King Birendra and
the army
that Parliament must not be solely responsible for
national
defense. Accordingly, the National Defence Council will
probably
act as an intermediary body between the Parliament and the
king
where decisions affecting the military will be debated and
negotiated. Under this arrangement, the army, still a
critical
component of political stability, also retains a formal
say in
national security affairs.
Despite Nepal's transition from an absolute monarchy to
a
democracy, the king retains formidable emergency powers
that, if
activated, would decisively tip the political balance of
power in
his favor. Article 115, "Powers to Remove Difficulties,"
grants the
king the unilateral right to proclaim a state of emergency
in the
event of a "grave crisis created by war, external attack,
armed
revolt or extreme economic disorder." Under a state of
emergency
the king assumes direct rule and "may issue necessary
orders as are
designed to meet the exigencies." Authority to implement
this
provision is not clearly spelled out, but the king is
specifically
authorized to suspend fundamental rights, except for
habeas corpus
and the right to organize political parties and unions.
The
proclamation of an emergency must be submitted to the
lower house
of Parliament within three months for approval by a
two-thirds
majority, after which it may remain in effect for six
months, with
one six-month renewal period. Although this provision was
untested
as of September 1991, the king clearly has the authority
to
dissolve the government and muster the nation's security
forces to
enforce royal decrees, if the situation warrants.
Provisions relating to the conduct of foreign affairs
also have
national security implications. Under Article 126,
treaties with
foreign governments must be ratified by a two-thirds
majority of
both houses of Parliament as opposed to the simple
majority
required for other bills. Specifically, the constitution
mandates
a two-thirds majority parliamentary assent to treaties
bearing on
"peace and friendship," defense and strategic alliances,
the
demarcation of national boundaries, and "national
resources and
distribution in the utilization thereof." One provision
forbids
passage of any treaty or agreement that "compromises the
territorial integrity of Nepal." The rationale for these
restrictions, although not spelled out in the constitution
itself,
clearly reflects widespread suspicions on the part of
political
parties and, in particular, the Nepalese public that an
overbearing
India might press for, or even dictate, treaty terms
unfavorable to
Nepal
(see The Security Environment
, this ch.).
Data as of September 1991
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