Nepal lifts Emergency
To please India or comply statute?
By Arabinda Ghose
While many people in India and abroad have welcomed the lifting of Emergency declared by King Gyanendra of Nepal on February 1, 2005 as the triumph of public opinion worldwide and indirect but thinly disguised threats by some countries, a close perusal of the Constitution shows that the monarch has scrupulously followed statutory provisions to justify his action of the midnight of April 29/30.
Soon after returning from his foreign tour, in the evening of April 29, the King announced withdrawal of Emergency provisions under Article 115(11) of the Constitution. While doing so he paid tributes to the wise advice he had received from Prime Minister Manmohan Singh and, it was surmised, the pressure of the United Nations Secretary General who was in India, in the last week of April. It is believed that Kofi Anan had spoken about restoration of democracy in Nepal. The first step in this direction, several renowned leaders had said, could be the withdrawal of Emergency provisions.
While not downplaying the impact of these statements, one has to take into account the Constitutional provisions which provided for the withdrawal of Emergency before the end of 90 clear days after its declaration. In fact, the withdrawal came two days ahead of the actual date (according to the Nepali calendar, the solar version of the Vikram era).
There are eleven clauses in Article 115 which empower the monarch to declare Emergency. Clause 1 relates to the actual declaration which we have just discussed. Clause 11, on the other hand, empowers him to withdraw the proclamation or orders at any time of his choice. He did precisely this on the night of April 29/30.
However, there are other substantial provisions in this Article which are rarely mentioned in the news media, at least in India, as one notices. Clause 2 enjoins upon the monarch to submit the proclamation or order to the Pratindhi Sabha, the Lower House of Parliament in Nepal, and which is equivalent to the Lok Sabha in India. What is more, Clause 3 says that if the Pratinidhi Sabha ratifies the proclamation or the order by a two-thirds majority, the period of Emergency can last six months from the date of its declaration (in this case it was February 1, 2005). And Clause 4 provides that if the Pratinidhi Sabha does not ratify the proclamation or order, then they will automatically lapse. There is more. Under Clause 5, if it is felt that even after the lapse of six months, conditions under which the Emergency was declared still exist in the country, then the Pratinidhi Sabha, by a resolution, can extend the period of Emergency for a specified period?not necessarily six months?and the Speaker of the Pratinidhi Sabha will convey this decision of the House to the King.
After returning from his foreign tour, in the evening of April 29, the King announced withdrawal of Emergency provisions under Article 115(11) of the Constitution. While doing so he paid tributes to the wise advice he had received from Prime Minister Manmohan Singh.
When it had became evident that it was impossible to hold elections under the conditions created by Maoist revolutionaries, the caretaker Prime Minister Sher Bahadur Deuba expressed his inability to hold the polls, upon which, the King, on October 4, 2002 dismissed the government headed by Deuba on grounds of ?incompetence? and took the reins of power in his own hands.
One must take into account the fact that even this action was within the four corners of the Constitution. The Articles the King had quoted in his proclamation of October 4, 2002 were 127 and 27(3). The former is an omnibus provision under which the King can issue certain orders for removal of obstacles in the path of implementation of the Constitution. The second refers to the powers and duties of the monarch who has been enjoined upon, according to provisions of this Article, to act in the greatest interest and welfare of the people of Nepal. It has to be noted that all orders issued under Article 127 have to be placed before Parliament. (No House, upper or the lower, has been specified in the Constitution.)
While the Pratinidhi Sabha has been dissolved and no fresh elections have been held so far for constituting this House, the Upper House, called the Rashtriya Sabha, still exists. It is a continuous House like our Rajya Sabha. However, its strength has now been reduced to about 35 out of a total of 60 and it is not customary to hold a session of the Upper House when the Lower House is not in existence.
Since the Pratinidhi Sabha does not exist, there is no question of the proclamation of February 1 by the King being sent to that House. And since that House is not in existence, the proclamation cannot be ratified within three months of its imposition. So, the proclamation would lapse automatically after the end of three months. The King has withdrawn it two days before that crucial date. Of course, the Constitution does provide that in case of dissolution of the Pratinidhi Sabha, the Rashtriya Sabha can exercise powers under Clauses 2 to 5, but according to Clause 6, the King appears to have decided against invoking this clause.
Since the Emergency is no longer in operation, one feels that most of the restrictions imposed during this period under the clauses enumerated here will be withdrawn. The important point to remember is that the Maoist threat has not disappeared and India too is under this threat. One will watch with interest the new developments in Nepal in the coming days.