Biswonath Upadhyaya, former Chief Justice of Nepal, says election organized by the king will not be fair and independent
Those days: Back in 1990 when people, victorious after the successful Mass Movement, went back to the streets demanding immediate promulgation of the constitution drafted by the Constitution Recommendation Commission. People organized demonstrations like this one after they knew that the palace was preparing to release its own version of the constitution ignoring the one prepared by the Commission. All b&w pics by Gopal Chitrakar. Bishonath Upadhyaa (pic below by Bikash Karki), chairman of the Commission, now says that the king has brazenly encroached upon the constitution. A mother shouts for the people’s constitution (below). Ganesh Man Singh, the supreme commander of the mass movement of 1990, warns a gathering of law students of dire consequences to the country if the king refrains from endorsing the draft constitution submitted by the Commission.
“The backbone of the Constitution of Nepal, 1990 is that the statue has entrusted the sovereignty in the hands of people. But the king’s move to dismiss an elected Prime Minister on Oct 2002 has confiscated people’s rights and broken that backbone. That was more serious encroachment of the constitution than Feb.’s takeover. If we are to move ahead with this constitution the king should backtrack.” Balkrishna Basnet of Kantipur daily asked Bishonath Upadyaya, the former CJ and one of the formulators of the present constitution, a few questions on the eve of 15th Constitution Day (Nov.9). The orginal version of this interview appeared on the Nov. 9 issue of Kantipur.
What situation the constitution is in now?
The constitution has been encroached, it’s not died or wounded. It doesn’t die even if the king tries to kill it. And this doesnâ t survive only by writing on the paper that it is still alive. There is no written constitution in the United Kingdom. The constitution is functioning there because of their commitment to that. We too have commitment but that is not in the action. Only people have the right to say if this constitution is good or not.
How do you take the royal moves of Oct 2002 and Feb 2005 in terms of violation of the constitution?
Everything happened in Oct. 2002. The king shook the base of this constitution by declaring that the sovereignty lies in him, not with people. That is against the commitment expressed by the then King Birendra. One king violated the commitment that was shown by the other king. It is said that we should never trust a king. My grandmother used to say me when I was a child that we should stay away from king, fire and the water. These are never dependable. They will destroy as and when they get chance. King has done the same. This is the reason why everything seems to be collapsing.
So the problem is not with the constitution?
No. What’s wrong with constitution? Nothing. The problem is the king’s ambition and royalist attitude. We should confront these problems, not the constitution.
How much right the constitution has given to the king?
The constitution hasn’t given the king to show the ambition and power like this. If he is to abide by the statue, the constitution has given the rights to decide on just two topics. 1) To appoint employees in the royal palace, and 2) To choose an heir to the throne. Nothing more than that. Rest happen as per the recommendation of elected representatives.
What’s the power equation like when there is no elected government in place?
This constitution hasn’t envisioned a scenario sans an elected government. If you behave constitutionally, no situation will come where there we don’t have an elected government. Why? Because if a PM resigns, he should continue functioning until a new one is elected. That’s the constitutional provision. That system was destroyed forcefully. Constitution doesn’t have medicine for those who use force.
How about drafting a new constitution?
We should first understand how and when we reach in such a situation that allows us to make a new constitution. No constitution is drafted just because someone speaks for that. An atmosphere should be created for that. King should say that he is prepared to face any kind of risk to make a new constitution from constituent assembly. Or the situation should be such that there is no king. Otherwise we can’t make new constitution. What’s the roadmap of parties to take us to that situation?
People have been strongly talking about cast, regionalism, and communalism. We are also talking about inclusive democracy. But democracy itself is inclusive and it treats all equally. Equal means inclusive. This gives equal opportunity to all.
Don’t you think some people revolted against this constitution because it didnâ t provide equal opportunities?
No, it has provided. But those who were supposed to implement it didnâ t provide. They didn’t hold that capability. This is not the fault of the constitution. If you don’t study and remain ignorant, the constitution doesn’t force you to study. A class is there that has been repressed by the rest of the society for centuries. They are dalits. They didn’t get chance to rise up and assimilated into the society. They were deprived of religious practices. Society has done crime by barring them from all these things.
Why couldn’t the constitution cover these problems?
It has covered. It has talked about providing them special facilities. Did we implement that? And now you talk about structural change? Why not yesterday? The constitution has clearly talked about reservation for dalits, women and children. There is provision in the constitution that lets governments to make separate laws for them. Everyone has formed the government. Why didn’t they do that?
Rumor is that the palace might bring another constitution.
I have already said if the king brings another constitution, he might be able to continue with that for about 2 to 4 years with the help of army. After that people will draft a new constitution. And king will have no place in that constitution.
Because by then people will be completely fed up with the king. Now too people are fade up with this king. But tomorrow, that hatred will increase in such a level that people will not give any place to the king in the constitution. But I don’t think the king will bring new constitution. King will continue enjoying rights he doesn’t have by misinterpreting this constitution.
But sovereign people will not wait for long. One day the king must be removed. For that we have to create national and international pressure against this king or remove him forcefully. A force could defeat another force. If people don’t help, the state can’t function for a day. All lawyers, journalists, teachers, civil servants should stop helping this regime. We should bring such a situation that we can defeat him forcefully. There is no other option.
What kind of force are you talking about?
Like that of the Maoists’. But it will take time for that.
Do you think political parties and civil society have started creating public opinion for that?
No. There is no agenda at first. That is a thing to worry about. One says we will go for loktantra (democracy). Another says, we will go for loktantrik republicanism (democratic republicanism). I think that we can’t return back to the place that we lost. Going to republicanism means leaping forward. What will happen if a limped person wishes to leap? There is a possibility of being dumped.
First we make sure that we have got what we lost (parliament). Lets stand firm on that. Then only we talk about next step. If you can, then leap forward. I am not against that. But we should think if that is practical or not.
If we start bargaining for the head of state just like what we are doing with the head of government (Prime Minister) today and if the head of state tilts toward a NGO or a political party instead of being independent, everything will be finished. We should not just play with people. I have no prejudice on this. I am a student of law and constitution. I am a democrat. My wish is that Nepal should have a democratic system. My rights should be secured be that in republican Nepal or in constitutional monarchy.
What’s your thought on the polls?
No polls can be organized without first establishing peace. That means Maoists have to lay down their weapons first. We can’t have a fair and independent election under the auspicious of the king. No one will go for voting under fear. Fairness means no one should be deprived of voting rights. If I can’t go to vote because of fear, that can’t be a fair election for me. That is why freedom is important. To say no for voting is also an electoral right. You can say I won’t vote. If you are to vote, you should be able to do so on your own wish. Maoists have already announced that they would reduce the height by 6 inches of any one who participates in the election. So who will take that path?
But the king has already announced the general elections.
Well, we saw elections (referendum) in 2036 BS as well. Armies were in charge of voting booths. If armies are to count votes, election will happen. Results will be declared. We can set up voting booths in the district headquarters and act like voting only in those places. That will be a good show off. And there will be some people who will say loudly that those elections were fair.
So you conclude that no fair elections can be organized now.
Yes. No elections can be held under the auspicious of the king. If that happens, all the former panchas will come back in the parliament as new members. They will create a new constitution that will have provision of autocratic monarchy. To hold elections today means restoring Panchayat. What is the guarantee that the king won’t dismiss government formed after this election? That is why the king should first abandon the path of autocracy. He should announce that he has abandoned autocracy. He should declare that sovereignty no longer lies within himself. He should declare that sovereignty lies in the hands of people. He should declare publicly that he would not do anything without the recommendation of major political parties. Maoists should assure that they would not use arms against voters. Otherwise no elections can be organized just because the king has announced.
Are parties right in declaring that they would boycott elections?
Yes. Otherwise all actions taken by the king will be legitimized to some extent. All those royal misdeeds might me accepted nationally and internationally. The real intention of this government is not to see parties participating in the elections and win majority. It wants them to participate somehow and see them loose. King has already recruited his people- zonal and district administrators. Those administrators who have beaten up CDS will not spare anyone.
That means no problem will be solved without first king coming back to his original position?
King must return back to his original position. King can’t hold elections without first doing that. There is no meaning parties reach an agreement with the king in this situation.
30 Responses to “‘King Gyanendra Should Backtrack’”
1. Govindey Says:
November 9th, 2005 at 8:33 pm
Two people I respect the most in Nepal; Ganesh Man Singh and Vishwanath Upadhaya.
2. brad Says:
November 10th, 2005 at 2:32 am
very solid and pursuasive arguement. Vishwanath Upadhaya has reached the height and has shown his maturity and he is visionery. Removal of monarchy by any means and at any cost is the only way out.
3. Sanjay Das Says:
November 10th, 2005 at 4:00 am
My salute to Bishwanath Upadhaya as well !
4. Visionary Says:
November 10th, 2005 at 6:48 am
5. Chandan Says:
November 10th, 2005 at 10:30 am
Bishwanath Upadhaya deserves salute…no stinginess in it…
6. slama Says:
November 10th, 2005 at 11:53 am
Bishwanath Upadhyay knows very well that there are many flaws in our 1990 constitution. He is just defending it because he is one of it’s authors. People like Upadhyay (many make him a hero here) have made a constitution which make people like him and the Judiciary very very powerful, but parliament and democracy is not catered for with the same vigour that the people who fought for it had. It was a rush job catering to the needs of the judiciary and not the greater need of the people.
7. whtever Says:
November 10th, 2005 at 11:58 am
this is just wht we all feel n i guess our dear king understands it quite well. we have allowed the royals to rule us for 217 yrs or more and no one stopped them for workin for the people. the king only seems to have that habitual power practice in his blood chainin him to his own justified “creative” actions..and as the VNU has stated above we are livin in a historical moment with us the nepalese on the brink of statelessness. political parties are boycotting the elections but they should focus more on bringin people on their side..
they should rather influece the people to boycott the elections. all the political forces seem to be overlookin the people’s power. and as a person brought up in the post democracy era all the political forces seem to have created a kind of frustration in the youths.. Nepal lacks the leadership its people can look forward too..the GP and MKN era is over now and to gain support the political parties should accept their fallacies and come down on their knees in front of the people.
and i don’t think even after 8 or more mths of this turmoil anything is going happen unless every single youth like myself feels they should be out participatin in the revolution for the change. sometimes i wonder why even a politically aware mass of people like me is not motivated enough to break this silence and MAKING THINGS HAPPEN
8. Nepali Flag Says:
November 10th, 2005 at 12:16 pm
Did not Gireeja and Biswanath sold the TANAKPUR ??
9. Right Says:
November 10th, 2005 at 12:48 pm
Everyone is wrong here. So they should committ and promise to the people first then they should compromise to continue the constitution. Changes maybe required not on the power but for the behalf of the people.
If not compromised all three mayget; CHAUTA KHANA GAEKO BUDHI JHOL MA DUBERA MORI”
So don’t compel India to come in between.
10. whtever Says:
November 10th, 2005 at 2:09 pm
hey nepali flag in the context of tanakpur. it was Girija’s fault as acc to constitution any treaty related to natural resource should be brought in discussion in the parliament.. but that never did happen and the most irritating and frustratin part is our control is only on 4% of the water resources of Mahakali..after the integrated Tanakpur agreement.. we need new people in politics…
11. Duke Says:
November 10th, 2005 at 5:22 pm
If one goes to Tanakpur, you feel like crying. They just gave of us one small door of water which is also controlled by the Indian government. Whole Mahakali took it by India. Trishuli was another nearest point to bring drinking water for Kathmandu, but due to Gandaki submission to India we cannot take water from Trishuli without Indian government conscent. What a pity being a Nepali………
12. Duke Says:
November 10th, 2005 at 5:23 pm
The last one left Karnali…..
13. Manan Says:
November 10th, 2005 at 10:12 pm
I don’t understand how you say the former Chief Justice “sold” Tanakpur? Blame Girija Koirala, but to state that the Upadhyay was also involved is ludicrous.
Its well known he’s one of the most principled men in Nepal. And even if there were flaws in the constitution, that doesn’t mean its overall thrust is wrong.
Frankly, “the King” has no right to intervene here. Its the people and their constitution. If they want to, they can leave him out. For ever.
14. krishna Says:
November 10th, 2005 at 10:39 pm
you are right since feb 1 all royalists claim that KG is only honest person in nepal. The fact that there are many people with strong principles in nepal who dont care about what this bhaimara king and his barking dogs say is too humiliating for royalists so they are planning trying to malign everybody to show KG in better light.. but proving even every body chor will not make KG a great man in contrast coz he is well known smuggler “the murti chor”.
15. hawkeye Says:
November 11th, 2005 at 12:06 am
to me you are the murderer, no other
16. krishna Says:
November 11th, 2005 at 12:21 am
but your king says it was dipendra… dont u trust your king?
17. Nepali Flag Says:
November 11th, 2005 at 3:09 am
Biswanath iterpreted law wrongly in the question of Tanakpur. He gave thumbs up to Gireeja and gave favour to India. Did not he go against Nepalese people. And now, whatever he is saying just serving India’s interest again, it would be much better if Gireeja come to power again to him.
18. Sparsha Says:
November 11th, 2005 at 3:16 am
I salute Viswonath Upadhayaji.
I also feel strongly that not too far from now we are going to end up without king. His days are numbered.
In the process of surviving how many Nepalese people this guy is going to kill thaqt is the biggest worry unfortunately.
19. Ethics Says:
November 11th, 2005 at 3:51 pm
I do not understand if somebody is doing mistake then he should be considered as wrong doers. If KG is doing mistake then he should be considered as wrong-doers. If Girija is doing mistake he should be consider as wrong-doers. That is what bring our society and democracy strong. Why to differentiate the mistakes? One should apologise the mistakes to correct it for the future. Then the trust of the people will be strong.
20. krishna Says:
November 11th, 2005 at 5:11 pm
very true it does not matter who you are you should admit your mistakes and follow is up to correct it.
One thing is surprising though KG is strengthning democracy as he says then why is he always against democratic parties? will strong democratic party mean less stronger democracy??
21. Ethics Says:
November 11th, 2005 at 5:39 pm
I agree with your point KG should consult the strong and main party for the the future democracy. And party should be very clear in their vision to drive nation in peaceful way.
22. nepal_nepal Says:
November 12th, 2005 at 8:41 am
Dear all nationalists
I remember Bishwanath left for USA to live with his family because of what he did to the country he was ashamed. Now he is back thinking people might have forgotten it.
Do you know that “His secreat links with the Indian government was disclosed”. If people don’t remember u can try finding it again.
so i suggest “Think before saluting anyone”.
He is the one who intentionally left so many loopholes in the constitution. A very weak constitution made for people.
Now the King(i regard him as a politicain not a king) is playing his games using these inherent weakness in the constitution.
People like Girija, Bishwanath are triumph cards for India. They have served them very well.
Gyanendra is no different, he is serving his greed. The greed that is directing him to execute undemocratically. He might be afraid for the continuity of Shah Dynasty in Nepal. Even he knows that it is getting weaker. he might not know his acts are making it more weaker.
Remember the people who made the constitution.
Don’t you think all were royalists.
1. Bishwa nath was once a stauch royalist.
2. Surya Nath Upadh…. another royalist
3. Daman Nath Dhungana(now people know where belonged)
4. others not very important
I still suspect if King will invite Giriaj one day secreatly and offers him Prime Ministership he will not say no. And according to the King. He is no diferent that Giri or Bista. I think Nepali people must have girija very well.
23. nepal_nepal Says:
November 12th, 2005 at 8:44 am
And Act according to the King. He is no diferent that Giri or Bista. I think Nepali people must have girija very well.
24. nepal_nepal Says:
November 12th, 2005 at 8:46 am
I still suspect if oneday King secreatly invites Girija and offers him Prime Ministership he will not say no. And act according to the King. He is no diferent than Giri or Bista.
I think Nepali people must have known girija very well.
25. Manan Says:
November 12th, 2005 at 11:19 pm
Just because someone was a royalist once doesn’t mean he or she has to stay one forever. Do you have to be born as an advocate of democracy? No, you can change your mind.
26. sgurung Says:
November 13th, 2005 at 12:49 pm
No, one can change their views if it is progressive, but we have to be careful of swingers and of people who have their interests with other nations also.
27. hawkeye Says:
November 16th, 2005 at 3:24 am
But it is not NEPAL’s king who said that, but NEPAL’s politician taranath ranabhat who said it, state your facts right before you pointing your finger at anyone.
but then again, having read your posts I know what your next respons is to be…. KING MADE HIM SAY IT…. uffffffff
28. hawkeye Says:
November 16th, 2005 at 3:28 am
and to add to this… I’ll say.. INDIA IS MAKING YOU SAY ALL WHAT YOU”VE BEEN SAYING… your pockets are being filled
29. All leaders Says:
November 17th, 2005 at 4:41 pm
Democracy brought by India will not last long. To become democratic one should act like democrats and should feel that he has responsibility to fullfill the need of the people. To become democrat, he should feel that he is representing 27 million of people not the party, his candidates and his relatives.
30. Green Mountain Says:
November 24th, 2005 at 8:55 pm
What is surprised if king run election?
It is people known that parties are unable to run democracy so king takeover the power. If not surely India will back to takeover the power to slavery rule .I really don’t want to be like Tibetan ” homeless child ”