There is public concern in Nepal about the possible abolition of the 1990 Constitution–which historically established democracy in the country–by King Gyanendra. Such an act would be a realization of his absolute power, initiated by the February coup and would end the legal foundation for democracy, which was established after a long struggle and a people’s uprising. With no parliament, there is at present no legal way of amending or abolishing the constitution; any changes will thus be made by a simple declaration by the king.
The 1990 Constitution handed over power to the parliament, a body of elected representatives. There are fears that after abolishing this constitution, King Gyanendra will declare a new constitution that hands power back to the monarchy. The provisions of the 1990 Constitution, based on the principle that sovereignty belongs to the people, are expected to be changed with sovereignty being placed in the hands of the King. This would bring to an end all prior attempts to develop democracy in Nepal by generations of Nepalese, many of whom have made considerable sacrifices to achieve their goal.
Among those institutions that will suffer irreparable damage from the abolishment of the 1990 Constitution, is Nepal’s judiciary. Despite the damage caused by the February coup to its authority and credibility, the judiciary has still remained a legitimate institution, deriving its legitimacy from a democratic constitution. The abolition of this constitution however, will constitute an absolute crisis of legitimacy for the judiciary as well as the entire legal system. If the king subsequently appoints the same judges, these individuals will be faced with not only accepting the abolition of the legal order within which they had previously operated, but also the legal authority of a tyrant. Under such circumstances there will be no possibility of the judiciary in any way functioning legitimately.
The move to abolish the 1990 constitution will bring about a political crisis greater than that brought by the February coup. Furthermore, without even the legal provisions of democracy– albeit only on paper–the claim that Nepal has no hope of recovering democracy will be seen as authentic. Such a situation can only worsen the intense social conflict existing in the country.
The international community, led by those involved in earlier attempts to derail Nepal’s escalation of human rights abuses such as India, the United States, the United Nations and the European Union, should intervene immediately and decisively to stop King Gyanendra from arbitrarily abolishing the 1990 Constitution and bringing about a new constitution. Without a democratic constitution and a congruent legal system, there is little hope for the realization of peace and human rights in the country.
