THE CHALLENGE OF RECONCILING REPUBLICAN ASPIRATIONS WITH THE
PROPOSAL TO REVIVE A DEFUNCT PARLIAMENT UNDER THE DOCTRINE
OF `PUBLIC NECESSITY’
The developments in Nepal are momentous. They also exhibit the
tensions of an embryonic legal regime yet to be born and the
difficulties of resolving them with attention to the issues of
legitimacy and the ideals of the rule of law. The midnight
proclamation of the king, made on 24 April 2002, clearly shows that
the democratic uprising in the country has eclipsed the monarchical
order. However, the process of political transition it proposes does
not appear to square with the democratic imperatives of
constitutional evolution. It seems to be tainted by elements of
arbitrariness that draw from the authoritarian politics of the past.
The parliament, proposed to be revived was elected in May 1999 for a
period of five years. It was dissolved in October 2002 presumably on
advice of then Prime Minister. The existing Constitution of Nepal
has no express provision for the revival of a dissolved parliament,
which has also elapsed its mandated term. It can only be done under
the constitutional provisions that the king had used to first
dissolve the parliament and then to bring Nepal under a state of
emergency on 1 February 2005. Convening of the same parliament,
under such authoritarian provisions, cannot surely square with the
republican spirit of the democratic uprising that compelled the king
to make the midnight proclamation. The alliance of seven political
parties has welcomed the proclamation. The Communist Party of Nepal
(Maoist), which has been conducting its `People’s War’ since
February 1996 and which concluded a 12-point agreement with the
alliance in March 2005 to end the “absolute monarchy” through a non-
violent agitation, has criticized the position taken by the alliance
as a “historic” mistake. The divergence between the responses of the
alliance of the seven political parties and the Communist Party of
Nepal (Maoist) seems to become the space in which considerations of
legality and legitimacy of the transitional situation must attempt
to reconcile with the revolutionary sentiments of the democratic
uprising.
Perhaps, the proposed revival of parliament can limit itself to
forming an interim government whose mandate is to conduct elections
to a Constituent Assembly. Convening of the dissolved parliament for
such a limited objective would not only receive the imprimatur of
the doctrine of necessity, it would also allow the interim
government to transcend the undemocratic framework of the 1990
Constitution by requiring it to conduct itself in accordance with
the scope, the provisions and the principles of governance under the
international treaty law, including ICCPR, ECESCR, CRC, CEDAW, CERD
and CAT, which the government of Nepal has already ratified. In the
process, the interim government in Nepal would not only reconcile
the constitutional theories that justify the validity of
transitional regimes on the criterion of effectiveness with the
doctrines of abiding obligations under customary international law,
it will also provide the international human rights law regime an
opportunity to respond and contribute to a peaceful realization of
republic aspirations that have been revolutionary in their origin.
It will be a unique experiment in synthesizing the doctrinal
framework of understanding an effective revolutionary regime as a
law-creating source with a benevolent international twist to the
theory of “public necessity.”