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Kathmandu Friday December 14, 2001 Marga 29 2058.
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Interpreting
emergency
About three weeks into the
state of emergency, misgivings have emerged in certain quarters about what the full
implications of that dispensation are. The misgivings are basically three in number.
First, just what are the full legal ramifications of the state of emergency? What for
instance were the courts to do about pending litigation? More important still, to what
degree should the rights affected by the emergency be suspended in actual practice? Some
light has just been thrown upon this nuanced issue by Justice of the Supreme Court Laxman
Prasad Aryal. Speaking at public functions in the capital recently, Justice Aryal said
some basic rights should be available, as humans remain humans whatever the situation in
the country. The second point that the justice makes is that there are no provisions in
the constitution for putting an immediate halt to any misuse of powers by government under
the state of emergency. The emergency gives the government some special powers, but there
is no device for checking against misuse of these powers. In this context he points out
that under the circumstances, it is up to the judiciary, the media and civil society as a
whole to play a role in upholding the rights of the people. Justice Aryal’s views
mark him out as a liberal, but coming from someone of his standing on the bench, it
deserves serious pondering by one and all. His third misgiving is about the way the
emergency is being used to do things other than what it was invoked for, at least to go by
what the government stated in the emergency declaration. He cites in particular the
requisition of land in the capital under emergency auspices. Not everyone might agree with
him on just what the emergency authorizes the government to do and the legal hair
splitting might best be left to the legal eagles. But it should be common sense that the
emergency should be used for the stated purpose of dealing with the Maoist insurrection.
Deviating from that purpose, however worthy the cause, might set a bad precedent. It would
not redound to the credit of our parliamentary democracy if we had to resort to emergency
powers just to get anything done in this country.
Justice Aryal also explained
that the government has not really understood the meaning of the emergency. This, he
implied, was illustrated by the fact that it was the Ministry of Health that decided
whether or not Maoist injured should get medical treatment. That was a decision which
should have been made by the cabinet and announced by the King. Similarly, since this is
still a civilian government, the Communications and Information Ministry should not have
been telling journalists what they could go to press with. Any such directives should have
come from the agency declaring the state of emergency. These finer points might be lost on
the general public but what Mr Aryal was apparently trying to say was that the government
being a civilian one, any exercise of emergency power should be strictly through proper
and designated channels. He also made some fundamental things clear, such as that there is
no need to fear any repetition of satrasaal, the overthrow of democracy that the country
saw in 1960-61, as the army has now been mobilized under the government of the day.
Despite the emergency the country is being run by a civilian government,
he emphasized, adding that the constitution gives no one the power to terminate the
democratic system. |
