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Legal 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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