NATIONAL 2 (Spotlight Weekly)]

Constitutional Safeguard

At the recommendation of the council of ministers, King Gyanendra declares a state of emergency

By KESHAB POUDEL

For the first time in the 12 years since the restoration of democracy, Nepalis are experiencing restrictions on their fundamental rights and freedoms. Following a fresh wave of violent attacks unleashed by the Maoists, which resulted in the indiscriminate killing of innocent people and the massive destruction of property, the government was compelled to take recourse to the emergency provisions contained in the Constitution of Kingdom of Nepal 1990.

"We have been compelled to recommend the [declaration of] emergency as Maoist terrorists attacked public offices and killed security personnel indiscriminately in different parts of the country," said Prime Minister Sher Bahadur Deuba in an address to the nation on Tuesday evening. "I tried my best to solve the problem through peaceful negotiations, but the Maoists broke the peace process and went on killing spree."

On the advice and consent of the council of ministers on being satisfied as to the existence of a grave emergency threatening the sovereignty, territorial integrity and national security of the country arising out of the armed rebellion as posed by Maoist insurgents, in exercise of the power conferred by Article 115 (1) of the constitution, King Gyanendra declared a state of emergency effective from November 26. To deal with the emergency, the king also suspended Articles 12(2a) b, c and d and 13.1,15 and 16, 17, 22 and 23 of the constitution. These are the clauses through which citizens can get remedy.

Although the situation following the state of emergency is going to be normal for the common people, the suspension of these articles would allow ordinary laws to temporarily regulate constitutionally guaranteed rights.

The proclamation can remain in effect for up to three months even without parliamentary approval. It can be extended for another six months if the proclamation is approved by a two-thirds majority of the members present in the Lower House. According to Article 115(2) every proclamation or order issued under clause (1) shall be laid before a meeting of the House of Representatives for approval within three months from the date of issuance.

If a proclamation or order laid for approval pursuant to clause (2) is pproved by a two-thirds majority of the House of Representatives present meeting at the meeting, such proclamation or order shall continue in force for a period of six months from the date of issuance.

"The government has every right to exercise the constitutional provision to safeguard the interest of the people and sovereignty of the country at a time of armed rebellion," said Supreme Court Justice Laxman Prasad Aryal.

"The emergency clauses have been included in the constitution to protect the country and the constitution from armed rebellion," said Justice Aryal, who was a member of the panel that drafted the constitution.

A state of emergency is declared during extraordinary situations and has serious implications on the fundamental rights citizens enjoy during normal times. Citizens shall be deprived of these fundamental rights for the duration of the proclamation. No citizen can go to the Supreme Court to seek remedy for the protection of fundamental rights suspended by the order.

The suspension of Article 12(2) a, b, c, d would affect the civil liberties Nepalis have become accustomed to since the political changes of 1990. This article guarantees the freedom of opinion and expression, freedom to assemble peacefully and without arms, freedom to form unions and associations, freedom to move throughout the kingdom and reside in any part thereof.

His Majesty also promulgated an ordinance making all terrorist and disruptive activities illegal and punishable. Through this ordinance, the government has filled the vacuum created by the non-existence of anti-terrorist laws in Nepal. The ordinance has also sought to provide some relaxation in the exercise of rights of freedom of speech and expression and other rights suspended by the proclamation of emergency. Only those activities that support and incite violence and terrorism are to be restricted.

Under the order, the press and publication right is also suspended. According to Article 13(1), no news item, article or other reading material shall be censored but the article gives some rights to impose reasonable restrictions on any act which may undermine the sovereignty and integrity of the kingdom, or which may jeopardize national harmony. The order also suspends Article 15, which relates to the right against preventive detention and the right to information.

"The government has rightly taken the constitutional decision to quell terrorism. The government has every right to order the emergency and impose restrictions on certain fundamental rights," said senior advocate Mukunda Regmi, who was also on the panel that drew up the constitution. "Of course, people will have to lose their rights and freedom for a certain period."

As the king has ordered the emergency by activating the constitutional provisions, it will last for three months without any challenge. For their part, the people would have to sacrifice their freedoms. The country can only hope this trade-off would bring peace and stability that is vital for democratic growth and economic progress.