Operation Destabilisation
After the interim order issued by the Supreme Court, eight army officers have already been reinstated in their previous position but ‘operation destabilisation’ continues
By Keshab Poudel
With the interim order by the Supreme Court, eight Brigadier Generals of the Nepal Army, whose tenure was not extended by the government, have already been reinstated in their previous positions. But the defense ministry’s controversial decision has badly shaken the institution of the national army.
Maoist leader and finance minister Dr. Baburam Bhattarai and his party cadres’ hostile comments against court and army show that ‘operation destabilisation’ is well underway. “The court and army are threat to Loktantra,” thundered Dr. Bhattarai recently.
Chaired by Justice Kalyan Shrestha, a single bench of Supreme Court on March 24 issued an interim order asking the Ministry of Defense (MoD) not to implement its decision not to extend the tenure of eight Brigadier Generals of the Army. The single bench referred this case to larger bench to settle the legal question that had arisen regarding the controversy.
Following the apex court’s verdict, eight Brigadier Generals Pradip Bikram Rana, Pawan Bahadur Pandey, Raju Pratap KC, Kumar Budhathoki, Narendra Rawal, Shiva Poudel, Ramesh Bista and Nar Bahadur Kandel have been reinstated at the Army headquarters.
At a time when Nepal’s all major institutions that could provide stability to the country were in the process of destruction, the court’s decision has given a temporary relief to NA and prevented a move aimed at creating a vacuum in the army’s institution.
The interim order was issued under a binding precedence established in a similar case three years ago by the full bench of the apex court. The full bench, in its decision, said Nepal Army Appointment and Promotion Rules clearly stipulate that three years extension is mandatory for those brigadier generals who were promoted before the amendment of rule in 2061/12/10.
In a petition filed by Brigadier General Pradip Pratap Bam Malla, the full bench of the Supreme Court said in its decision of 2063/7/2 that the extension is mandatory to those who were promoted as a brigadier general before the amendment of the rule in 2061/12/10. Eight brigadier generals who were reinstated by the court were promoted just a week before the amendment of that rule.
Following the full bench judgment, the single bench issued interim order to reinstate the brigadier generals and asked the MoD and Army headquarters to place their arguments before the full bench.
“The latest verdict is in accordance with a similar verdict by the full bench of the Supreme Court in the case of applicant Pradip Pratap Bam Malla. The extension of tenure is mandatory to those who were promoted before the amendment of the Army Recruitment and Promotion Rule, ” said advocate Bal Krishna Neupane, who pleaded on behalf of eight Brigadier Generals.
The rule was amended during King Gyanendra’s rule in which the mandatory extension provision was removed. However, the Regulation said that the new provisions shall be applicable to those only who were promoted after the amendment of this Regulation.
“The government which fights against its own army can’t earn trust. There was nothing to plead as the present controversy was already settled in Brigadier Pradeep Pratap Bam Malla’s case,” said senior advocate Badri Bahadur Karki who pleaded on behalf of the petitioners.
Even after promulgation of the New Army Act, a provision was incorporated in the Act saying that new provisions would not be applicable to those army personnel who were appointed and promoted as per the previous act. “Their tenure and extension of tenure has been fixed by the previous act and regulations,” said advocate Neupane. “Even the Nepal Army Act 2006 has certain provision which is mandatory to the government. According to clause 17.3 of the Nepal Army Act, the government shall promote and extend the tenure on the recommendation of the Chief of Army Staff. Army chief in his recommendation has to furnish reason and conditions for such extension.”
The spirit of the new act is that Army chief is all in all in the army regarding the promotion, appointment and extension of tenure of the army personnel. According to clause 17.3 of the Nepal Army Act, chief of the army staff shall recommend for extension of tenure of army with reason and conditions for any position making the recommendation as a mandatory.
This kind of provision is written in the law with an expectation that the army should not be politicised. If Army follows the chain of command, the army officers do not need to go to politicians.
The clause 144 (2) of the Nepal Army Act 2006 also says that all the army personnel will remain in their own existing positions at the time of promulgation of this act and their tenure shall be fixed in accordance with previous act and rule and regulation.
According to 142 (2) of the Act, the government can make rules on appointment, promotion and retirement of army personnel. However, the new rule is yet to be formulated.
Clause 24 of the Law Interpretation Act 2010 says that in the case when the new Act is promulgated not replacing the rules and regulations, the old rules and regulations shall be followed.
Army Vs The Govt
The tension between the Nepali Army and Defense Ministry heightened after a senior Maoist minister and Defense Minister Ram Bahadur Thapa ‘Badal’ refused to forward the file of eight Brigadier Generals for the extension of their tenure.
Nepali Army had submitted the file recommending the extension of the army officers before the defense ministry to be forwarded to the cabinet a few weeks ago.
Sources at the defense ministry claimed that Defense Minister Ram Bahadur Thapa had refused to forward the file to the cabinet at the last minute. Earlier, the Maoist-led government had extended the tenure of Brigadier General Dipak Gurung.
Army spokesperson Ramindra Chhetri said the Nepal Army, as per the Military Act-2006, had recommended an extension of three years for the eight officers, who are below 56 years of age.
Even President Dr Ram Baran Yadav expressed his concern when Prime Minister Pushpa Kamal Dahal ‘Prachanda’ called on him for regular briefing. Nepali Congress, and CPN-UML openly opposed the move of the CPN (Maoist) regarding the Army. “This is not acceptable for us,” said former prime minister and Nepali Congress leader Girija Prasad Koirala.
Although CPN-UML is one of the allies of the coalition government, it opposed the move of the Maoist government. “Maoists want to create vacuum by not extending the tenure of eight Brigadier Generals,” said CPN-UML general secretary Ishwor Pokhrel.
Contradictions Within
Some strange alliances among ideologically hostile individuals emerged after the decision of the MoD. Although he is a liberal democrat, Dr. Lok Raj Baral, who served as Nepal’s ambassador to India on the recommendation of the Nepali Congress party in 1996, backed Maoist minister Ram Bahadur Thapa’s decision not to extend the tenure, in his long article in Kantipur daily.
Dr. Baral, who got his Ph. D. From Jawaharlal Nehru University (JNU), India, criticised Nepali Congress and CPN-UML leadership for opposing the Minister’s decision. Although they are critical on Maoist decision on integration of Maoists in the army, southern plain-based regional political party like Nepal Sadbhvana Party and Madheshi Janadhikar Forum backed Maoist minister Badal’s decision.
When Nepali Congress leaders Sushil Koirala and Ram Chandra Poudel, whose views were critical of the army in the past, backed Nepal Army, former Home Minister Krishna Prasad Sitaula and nephew of Prime Minister Dr. Shekhar Koirala and daughter Sujata Koirala remained silent.
Sources close to Defence Ministry said that Prime Minister Dahal and Defense Minister Thapa were in the mood of extension of tenure. However, the game changed after Dahal’s breakfast meeting with a powerful envoy at his residence in Baluwatar.
Although prime minister Dahal left the country for European tour asking his cabinet colleagues not to speak publicly against the court’s decision, a senior member in the cabinet and Finance Minister Dr. Baburam Bhattarai, who also holds Ph. D. From JNU, is harping anti-court and anti-army statements.
With the interim order of court, the army has got a moment of respite. Given Nepal’s own track record over the past three years when the constitution was replaced by a parliamentary proclamation and monarchy was removed without any discussion, no one can predict now how the the latest row involving senior army officers will be over.
Courtesy: Spotlight newsmagazine
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