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VOL. 28, NO. 25, April 03, 2009 (Chaitra 21 2065)
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Operation Destabilization
After the interim order issued by the Supreme Court, eight army generals have already been reinstated in their previous position but operation destabilization continues
By KESHAB POUDEL
With the interim order by the Supreme Court, eight army generals, 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 Nepal Army institution.
Maoist leader and finance minister Dr. Baburam Bhattarai and his party cadres’ hostile comments against court and army show that operation destabilization is yet to end. “The court and army are threat to Loktantra,” thundered Dr. Bhattarai.
Chaired by Justice Kalayan Shrestha, the single bench of Supreme Court issued interim order to the ministry of defense not to implement the decision regarding not to extend the tenure of eight Brigadiers. The single bench referred this case to larger bench to settle the legal dispute arising in the issue of eight brigadiers.
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 in Army headquarter.
At a time when Nepal’s all institutions of stability are in the process of destruction, the court’s decision gives a temporary relief to NA and prevented a greater move to create vacuum in the army’s institution.
The interim order was issued under a binding precedence established in similar case three years ago by full bench of court. The full bench in its decision said Nepal Army Appointment and Promotion Rules clearly stipulates 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 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 ministry of defense, Army headquarters to place their argument in full bench.
“The single bench verdict is as per the decision of full bench of 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.
The rule was amended during King Gyanendra’s rule in which the mandatory extension provision was removed. However, the Rule said that the new provisions shall be applicable to those only who were promoted after the amendment of this Rule.
“The law and rule has so clear provision that the court has no other option other than to follow its own precedents,” said a lawyer. “Any lay man can say it.”
“The government which fights with its own army has no trust. There is 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 pleased on behalf of petitioners.
Even after promulgation of New Army Act, a provision was incorporated in the act that new provisions are not applicable to those army personnel who were appointed and promoted through the previous act. “Their tenure and extension of tenure has been fixed by the previous act and regulations,” said advocate Neupane. “Even Nepal Army Act 2006 has certain provision which is mandatory to the government. According to clause 17.3 of Nepal Army Act, the government shall promote and extend the tenure on the recommendation of Chief of Army Staff. Army chief in his recommendation gives 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 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 politicized. If Army follows the chain of command, the army officers do not need to go to politicians. As in the past, the court will interpret in accordance with its spirit.
The clause 144 (2) of Nepal Army Act 2006 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 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 Govt
The tension between the Nepali Army and Defense Ministry heightened after the Defense Minister 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 term of Brigadier General Dipak Gurung.
Army spokesperson Ramindra Chhetri said the Nepali Army, as per the Military Act-2006, recommended an extension of three years for the eight officers, who are below 56 years of age.
Even President Dr Rambaran Yadav expressed concern to Prime Minister Pushpa Kamal Dahal ‘Prachanda’ while inquiring about the move of defense minister Ram Bahadur Thapa Badal. Nepali Congress, and CPN-UML openly opposed the move of Maoist regarding army. “This is not acceptable for us,” said former prime minister and Nepali Congress leader Girija Prasad Koirala who even declined to meet prime minister on the issue of non extension of their tenure.
Although CPN-UML is one of the allies of coalition government, it opposed the move of Maoist government. “Maoists want to create vacuum by not extending the tenure of eight brigadier generals,” said CPN-UML general secretary Ishwor Pokharel.
Contradictions Within
Some strange alliances among ideologically hostile individuals emerged after the decision of defense ministry. Although he is not ideologically Maoist, Dr. Lok Raj Baral, who is claimed to be one of the proponents of new Nepali version of democracy called Loktantra and who served as Nepalese ambassador to India on recommendation of Nepali Congress in 1996, backed Maoist minister Ram Bahadur Thapa Badal’s decision not to extend the tenure in his long article in Kantipur daily.
Dr. Baral, a Jawaharlal Nehru Ph.d, criticized Nepali Congress and CPN-UML leadership for opposing Badal’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 to army in the past, backed Nepal Army, former home minister Krishna Prasad Sitaula and nephew of Prime Minister Dr. Shekhar Koirala and Sujata Koirala remained silent.
Sources close to defense ministry said that prime minister Dahal and defense minister Badal 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 Pushpa Kamal Dahal Prachanda left the country for European tour asking his cabinet colleagues not to make this issue public, his finance minister Dr. Baburam Bhattarai, who is also JNU’s Ph. D, is harping anti-court and anti-army statements.
With the interim order of court, the army got a certain respite. Given Nepal’s own track records of past three years when constitution was replaced by declaration and monarchy was removed without discussion, no one can predict now how the row over army will be over. But, it will take a long time to stabilize the institution.
