Crisis Decision Making under the State of Exception

Kumar, Dhruba, Contributions to Nepalese Studies

Introduction

Three unexpected events occurring between 20 December 2006 and 16 January 2007 have raised the question of accessibility to the highest decision maker to express concern and influence policy in the country. The first was the meeting of the American Ambassador James F. Moriarty with Prime Minister Girija P. Koirala to "express serious concern over the Maoists' protest programmes and 'armed activities'" launched against the government's nomination of ambassadors. (1) The second was the turning back of the students without an audience with the prime minister against the earlier assurance of the meeting to submit a memorandum in relations to the appointment of Vice Chancellor at the Tribhuvan University that remains vacant for over last eight months. (2) The third was the violent protest unleashed by the Madhesi community against the Interim Constitution promulgated on 15 January 2007 demanding their rights to proper representation.

This narrative is a simple exposition of a critical facet of political elite behaviour pertaining to their accessibility and influence in decision making, public accountability and responsibility. The urgency to personally protest against the domestic events of a host country even hardly related to the "'interests" of the guest country is beyond the diplomatic brief, which could be interpreted only as high-handedness in manipulating and influencing the decision-making process of a weak and moribund government leadership. On the other hand, the neglect of a just cause and restriction to the accessibility to the leadership by the concerned people is the case of a gross irresponsibility to tile national constituency to whom the leadership belongs. And the promulgation of the Interim Constitution without adequately reflecting the already agreed modality of the state is ineptitude on the part of the political leaderships with demonstrated opacity in decision making.

The seriousness of the first event is a hint at the exceptional situation created by the Maoists rampage after the signing of a Comprehensive Peace Accord. By raising the Maoists' bogey people in Nepal have been told that they are living in exceptional time requiring cautionary and exceptional power to deal with the situation. As the future is indefinite and the coming crunch probably would be more horrendous than expected, they should be prepared to face the eventuality. The second event is a simple indication of difficulties in state-society relationships while democratizing the sphere of governance in response to public interests. The third event is the glaring case of the leaderships' incompetence in crisis decision making igniting the anticipated problem. For the government established after the Jana Andolan H and thriving on the humble support of the people the Madhesi movement has become a real test case for its performance aptitude and democratic credibility. Actually the Madhesi movement is posing as a test for institutionalizing democracy. If the process of institutionalizing democracy is inadequate, it will collapse, as the Maoist insurgency has earlier led to the collapse of the post-1990 democratic institutions. The continuing disruption of normalcy caused by the movement in the Nepal Tarai and its implications in the country as a whole suggests the margin has now triumphed at the centre of decision making forcing the government to abide by the consensual commitment previously made. But the enforced decision, however, has no mutual compliance. The focus of the government apparently is on crisis diffusion rather than crisis prevention. Hence the country is in crisis defined in medical term as a condition suspended in unpredictability in the state of an organism.

State of Exception

Nepal is presently marred by two fundamental challenges. First, Nepal is in crisis that has continued unabated. Second, it is in a state of exception. Crisis is related here to a context where the political leaderships have not been able to respond properly to the challenges posed by the new political dispensations to make a complete rupture with the past practices of the statecraft. The state of exception is a function of the crisis as the leadership is rejoicing with the assertion of the supremacy of the House of Representatives (HoR) and announcing a series of populist legislations, including stripping the power of the king and putting military under civilian control. Indecision in implementing decisions, however, remains. Although the political leaderships have discarded the old order based on the 1990 constitution, yet any deterministic political order has to emerge. The leadership is suspended between the precarious past and uncertain future. Transition remains indefinite.

The position I have taken in this paper is that the continuing crisis of the Nepali state under the state of exception could be calamitous for the future of democracy. The obvious confusion that the currently ensuing situation has created has tampered the notion of the rule of law, in the absence of which no democracy can flourish. Claims of revolutionary ethos of Jana Andolan II not implemented but used cozily as rhetoric to escape from constitutional and political obligations could become an enigma precipitating democratic transition into a cause either for anarchism or totalitarianism. Because of the conflicting positions the political leaderships have taken in the process of governing the post-Jana Andolan H state, the repercussions are drifting the state towards instability rather than functioning in search of a viable political alternative to the prevailing status quo.

This paper is broadly contextualized with two interrelated phenomena: crisis decision making and, the state of exception, which are directly related to the leadership behaviour (see the cartoon below). The cartoon depicts the characteristics of the highest leadership in the country who is suspended in indecision as he has failed to pursue a decision to an end, as exemplified by his televised address to the nation on 31 January 2007, which was evasive on the core issue of federal system of governance. This has led to an utter confusion in decision making. As a matter of fact, the prime ministerial address was made after some hectic meetings of the eight political parties. But none of the parties and even some influential members of the prime minister's own party (NC) took responsibility for what was said. Neither had the decision to address the nation by the prime minister emanated from the recommendation of the "legislative-parliament" after serious assessment and deliberation on the issues raised by the Madhesi uprising. Nor had the eight political parties comprising the "legislative-parliament" collectively, and seven parties constituting the SPA-government taken obligation for sharing the responsibility jointly.

Crisis decision making is defined as a notional search for a strategy by the leadership that will bring about a change conducive to mending fences by achieving the set objectives through resolving the conflict (Snyder and Diesing 1977:347). Crisis decision making should be collectively binding with accountability. The state of exception, on the other hand, is a situation creating "a space devoid of law, a zone of anomie in which all legal determinations--and above all the very distinction between public and private--are deviated" (Agamben 2005:50). The state of exception is a situation grounded on the political practice rather than the rule of law. It is not the law but the lawlessness that defines the state of exception. It leads to a situation in which the concept of a boundary between constitutionally defined political authority and transcendent political authority is put at odds with each other. These phenomena are not new, neither are they created by the post-Jana Andolan H situation. It go back to the year 2001 when the emergency was declared under tile 1990 constitution and the state of exception was claimed by the democratic government leading to its own demise by merely becoming acquiescent to authoritarianism. (3) The strangulation of Constitution by the transcendent political authority was exemplified by the state of exception in which legality of political authority was undermined by the unlimited executive power. In a country where death penalty was abolished by the Constitution, the government functioning under the same Constitution, for example, had put the price tag over the heads of "'terrorists" advising people to become bounty hunters and inviting them to "bring in the head and take back the money in the same bag." Lynching and killing was legitimized by the democratic government without any reverence to law.

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Unmaking Democracy

The question of public accountability did not make much difference even under democracy. Unscrupulous measures were taken to retain support to the personal rule of the leadership reflecting on challenge to tile leadership as threat to democracy. A personalized form of power and rule characterized democracy, However the leaderships were not prepared to take political responsibility for the disturbing and damaging effects of their self-regarding behaviour on the normative thrust of democracy. Politics was transformed into a networking of people collectively identified by partisan interests with a singular pursuit for "opportunity hoarding" (Tilly 2003:10) by acquiring and monopolizing the resources of the state. Political parties functioned as "protection rackets" (Tilly 1985:170-71) with the sanctity of constitution as legitimate organizations even by monopolizing the forces of violence when in government. The throttling of democracy does not matter so long as the personified greed of political leaderships retains them in power.

Nevertheless, the death of democracy then was mourned by politicians raising accusatory fingers against each other for such a cause. Political leaders were made personally liable and reasons were identified and analyzed for the collapse of democracy. But nobody thought about the process of decision making contextualizing the crisis leading to the claim of the state of exception undermining the rule of law that was the real cause for degeneration of democracy. The end objective of crisis decision making is always to preserve the fundamental value; a system promotes not to compromise it through tactical interests expedient to propinquity of gains. Crisis decision making is a consensus building effort with a majority of coalition supporting the leadership position. If crisis decision making requires consensus building, how was this consensus obtained and who were the participants in and precipitants of decision making, for example, in declaring the national emergency? Were the ruling parties, the cabinet, parliamentarians or the public opinion complicit with the executive while making decision or the security agencies; and the constitutional monarchy was behind the "opportunity hoarding" process influencing the executive to make cabinet decision for recommending promulgation of emergency to the king? What was the factor influencing the government to declare national emergency? Was it the unanticipated eruption of a "grave threat to the sovereignty and national security" of the Nepali state? Or was it simply the spread of violence or attack on the armed contingency posing national security challenges?

The reason given for the imperative of emergency, however, was not the enduring violence but the attack on the armed contingency. It should, nevertheless, he noted here that the military was not deployed for 72 hours after its armed contingency was attacked and troops were killed by the Maoists on 23 November until the national emergency was declared on 26 November 2001. Actually, the situation had demanded a counterattack, not a decision to attack that requires the formal issuance of an order. What causes military inaction and why were the counterattack and armed engagement not taken place despite the fact that Maoists were militarily engaged and had already killed the Royal Nepal Army (RNA) forces at two other places with coordinated attacks? As per the thinking of an Army Brigadier responsible for the legal affairs of the RNA, the reason for the immobility of the soldiers was that the army "cannot be deployed by any other laws ... [except] TADA" (Ojha and Chapagain 2004). Thus, the declaration of national emergency was not enough for the army mobilization, nor was the then existing Military Act 1959 sufficient to direct the military command, but the need of impunity provided by the anti-terrorist laws for field operation. This absurd argument was a pathological exposition of thinking entrenched in the RNA high brass in relations to the human rights sensitivity of the citizenry. One is therefore queered by the objective of the national emergency.

As the promulgation of emergency suspended fundamental rights stipulated in Articles 12, 13, 15, 16 and 17 of the 1990 Constitution except the rights to constitutional remedy through the provision of habeas corpus made inviolable on paper, it led to the zone of indistinction between an enemy and a friend. It is also surprising that the counter-insurgency mobilization of the armed forces was initiated only after TADO has subsequently incorporated a provision of impunity (Article 20) to the security forces depicting Maoists as "terrorists." The provision of impunity thus provided security forces the required license to kill without any remorse making rights of inviolability of the citizens the first victim. The state of exception then becomes a rule subordinating all the law-abiding agencies to the whims of the "executioners" (e.g. decision …

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Publication information: Article title: Crisis Decision Making under the State of Exception. Contributors: Kumar, Dhruba - Author. Journal title: Contributions to Nepalese Studies. Volume: 36. Issue: 1 Publication date: January 2009. Page number: 1+. © 2008 Research Centre for Nepal and Asian Studies. COPYRIGHT 2009 Gale Group.

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