Doctrine of necessity and its applications by nepalese sc.a brief look


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The Paper closely looks at the application of 'doctrine of necessity' in Nepalese Constitutional Law. This is an attempt to summarize those case laws which deal on the aspects of constitutional amendment when Nepal is passing through a phase of political and constitutional Transition. On a close view, we observe that 'doctrine of necessity' was used a single powerful tool to validate the constitutional amendments when it relates to extension of term of Constituent Assembly in Nepal which have been elected to draft and promulgate a new Constitution. However, in one of the final verdicts, SC of Nepal has made it clear that 'doctrine of necessity' can not forever extend the term of Constituent Assembly. Therefore, this paper can be taken as a close look on emergence and fall of this doctrine in Nepalese constitutional law discourse.

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Doctrine of necessity and its applications by nepalese sc.a brief look

  1. 1. The Doctrine of Necessity in Nepal – Frequent Amendments in Interim Constitution, andfinally Supreme Court’s realization – a brief case study1The recent constitutional development in Nepal only points out to me a chain of judicialinconsistencies and bizarre reaction to socio-political developments. To my knowledge, there arefew case laws where ‘doctrine of necessity’ was invoked by the highest Judiciary of the Country.The first one was, when Supreme Court had to approve of the actions taken by the then KingGyanendra Of Nepal who took the help of Article 127 of the then, Constitution of Nepal, 1990(Nepal Adhirajyako Sambidhan, 2047 BS – Nepal follows a different Calender System calledBikram Sambat) to usurp the power from democratically elected government. Though theSupreme Court did not directly entertain and address the issue on the garb of prohibition byConstitution on the actions taken by His Majesty, but more or less, it made clear that suchactions were required at that time.Thereafter, people came to streets demanding restoration of democracy and dissolved parliamentand when king realised that he cannot handle it anymore, democracy was restored and parliamentwas reinstated2. The reinstated Parliament replaced the old Constitution of 1990 by InterimConstitution of 2007 and decided that an election for Constituent Assembly (CA) will be held toframe a Constitution of ‘New’ Nepal. The election was conducted in April, 2008 and CA startedfunctioning from 2008 May. Originally, the CA was constituted for a period of two years with amandate that a new Constitution for ‘New’ Nepal would be framed by then. But, Article 64 ofInterim Constitution of Nepal, 2007 also created a provision stating the tern of CA can beextended by further six months in case the task of constitution framing is not completed due tothe reason of proclamation of state of emergency in Nepal.For your ready reference, Article 64 reads as below:1 This can be called an informal information note/compilation from constitutional and legal view point in Nepal.This is a copyrighted work of Advocate Rajib Dahal. Please cite in your research with prior permission and withsufficient disclosure of copyright holder. For suggestions and feedbacks, please reach me at rajib.dahal@gmail.com2 The reinstatement of parliament was also questioned before the highest court of the country and court cumulativelyreplied that ‘doctrine of necessity’ calls for revival of house and king has such power. 1
  2. 2. “64. Term of the Constituent Assembly - Unless otherwise dissolved earlier by a resolutionpassed by the Constituent Assembly, the term of the Constituent Assembly shall be two years3from the date of its first meeting.Provided that the term of the Constituent Assembly may be extended for up to six months by aresolution of the Constituent Assembly, in the event that the task of drafting the Constitutionis not completed due to the proclamation of a State of Emergency in the country.” (UnofficialTranslation of Nepalese Text of the Interim Constitution, 2007)Therefore, legally, the term of the CA was for two years and it was supposed to get over by May,2010. By 2010, Nepal is/was supposed to have a new constitution.Within the first two years and even today, the political parties in Nepal were mainly occupiedwith the fighting among them to grab power. Only thing which was evident on them was theirlack of seriousness and political apathy. As expected, they again failed to perform their dutiesand there was no other way than extending the term of the CA. There was no case of anyproclamation of emergency and therefore, the basic requirement as per Constitution to extend theterm of CA was not fulfilled. However, all the political parties went ahead, passed a resolution inthe CA and extended its term by ONE year4. This is how CA got life until 2011 May/June.(Another one year life after it got expired in 2010 May/June after two years of its election in2008 May/June.)Thereafter also, as expected, the bunch of political thugs, if I may say so in distress and anguish,completely failed to complete their duties. Once again, they extended CA’s term by another 3months, from 2011 May to August, 20115.On this background, you may understand why the doctrine of necessity was given life to inNepalese Constitutional Development. I have already mentioned about how doctrine of necessitycame into picture for the first time in recent times in Nepal. But that was under the old3 Two years has been replaced by Three years after Eighth Amendment of the Interim Constitution of Nepal, 2007.This has been discussed in detail in later portion of this Article with judicial opinions.4 By 8th Amendment of the Constitution.5 By 9th Amendment of the Constitution. 2
  3. 3. Constitution of 1990. Under the Interim Constitution of 2007 (in some places, may also bereferred as ICN or ICN, 2007 or ICN, 2063), Writ Petitions were/have been filed before ApexCourt for deciding different constitutional amendments and on these writs, Doctrine of Necessityfound its place.Therefore, this note will discuss the case laws from Nepalese Supreme Court which had appliedthe doctrine of necessity when validity of Constitutional Amendments under ICN, 2007 wasquestioned before it:Case No. 1:In the writ Petition No. 2064-WS-0029, in the matter of Advocate Subodh Man Napit v.Government of Nepal and Others, the issue before Apex Court was whether the CA has thepower to conduct proceedings against judges who will be elevated to Supreme Court fromAppellate Court or when they are picked from fraternity at the Bar. This was a very strange (atleast to me!) and newly introduced provision and Writ Petitions were filed before SC to strikedown the constitutional validity of this one. This provision of Parliamentary proceedings againstjudges was not there in original ICN, 2007 when it was promulgated on January 15, 2007. Theprovision for parliamentary proceedings was inserted in the Constitution by SecondAmendment of Constitution on June 13, 2007.The exact provision that was challenged under the Interim Constitution of 2007 was Article 155and that reads as below:“155. Hearing for the officials of constitutional bodies and provisions regarding citizenship -(1) Prior to appointment to constitutional posts on the recommendation of the ConstitutionalCouncil according to this Constitution, and to * the appointment of the Judges of the SupremeCourt and ambassadors, there shall be a parliamentary hearing in accordance with theprovisions of the law. 3
  4. 4. (2) In order to be eligible for appointment to constitutional positions under this Constitution, aperson must be a citizen of Nepal by descent or birth or by naturalization and have lived inNepal for at least ten years.” (Unofficial Translation of Nepalese Text of the InterimConstitution, 2007)* Amended on 2064 BS, Jestha 30 (June 13, 2007) by the Interim Constitution of Nepal(Second Amendment), 2064, to include reference to appointments of judges and ambassadors.Against above provision and against such hearings that took place in Nepal, when writ waspreferred, the Hon’ble Supreme court held that Article 155 is constitutional and refused to strikeit down. In one of the Paragraphs of the order, SC made use of ‘doctrine of necessity’ to saywhat it wanted to say.The paragraph goes like this: (Unfortunately, SC has not given paragraph numbers but in theorder which I downloaded from SC’s website, the judgement has spread over 66 pages and I amquoting from page 29.)“…………other than those things, for managing intervening period and for the necessarypreparation and writing of constitution which is based on principles of democracy,republicanism, federalism; Constitution can be amended by following the constitutionalprocedure mentioned in Article 148 based on ‘in furtherance’ and ‘doctrine of necessity’……”While delivering the verdict, the Apex Court refused to strike down the constitutional provisionregarding parliamentary hearings before judges are appointed in the Apex Court. 4
  5. 5. Case No. 2 (Two Cases have been discussed here):Analysis of Judgement arising under Writ Petition No. 066-WS-0050 & Writ No. 066-WS-0056 · Both these Writ Petitions deal with the 8th Constitutional Amendment of ICN, 2007. · The 8 th Constitutional Amendment of 2067 Jestha 14 (May 28, 2010) had extended the term of Constituent Assembly by one year time period, i.e. from June, 2010 to June, 2011. · In Writ Petition No. 066-WS-0050, SC upheld the 8 th constitutional amendment relating to one year extension of the term of CA. The verdict was given by a bench of three judges and they are of the opinion that CA term can be extended until the time Constitution is ready. · In Writ Petition No. 066-WS-0056, SC struck down (?) the 8th constitutional amendment relating to one year extension of the term of CA based on the ground that even in extreme emergency, the term could be extended only by six months time period. The verdict was given by a bench of five judges and they are of the opinion that CA term cannot be perpetually extended but only based on the doctrine of necessity and within the restrictions imposed by Constitution. · In Writ Petition No. 066-WS-0056, though the SC strikes down the extension of the term of CA, it does not issue any directions to that effect as the extended CA’s term had already come to almost an end by the time verdict was delivered. · Please note that Writ Petition No. 066-WS-0056 does not arise as a review of verdict under Writ Petition No. 066-WS-0050. Both the matters arise under separate Writ Petitions but during the hearing of Writ Petition No. 066-WS-0056, the bench takes note of outcome of Writ Petition No. 066-WS-0050 and in the end, when verdict is delivered in Writ Petition No. 066-WS-0056; it modifies/reverses the verdict of Writ Petition No. 066-WS-0050. 5
  6. 6. In the matter of Advocate Vijaya Raj Sakya v. President of Nepal, Mr. Ram Baran Yadav,Office of the President, Sital Niwash, Kathamndu and Others and in Advocate KamleshDwivedi v. President of Nepal, Mr. Ram Baran Yadav, Office of the President, Sital Niwash,Kathamndu and Others (Writ No. 066-WS-0050), the matter before the SC was whether theEighth Constitutional Amendment of ICN, 2007 was valid. The Eighth ConstitutionalAmendment had replaced the phrase ‘two years’ by ‘three years’ in an Article which originally,at the time of promulgation of ICN, 2007 had stated that the term of the CA would be for aperiod of two years. The Apex Court upheld such amendment. It seems that few of therespondents in the matter, in their defence and reply, submitted that such amendment is validalso on the ground of ‘doctrine of necessity’. In page 7 of 36 pages judgement (downloaded fromWebsite of Supreme Court of Nepal: ), though it is not clearbut it seems to me that Ministry of Federal Administration, Administration of ConstituentAssembly and Culture AND Ministry of Law and Justice submitted that ‘unless there are someprovisions which are clearly mentioned as unamendable in the constitution itself, all otherprovisions of the constitution can be amended as per the necessity, and therefore……………..’.Though the court approved of such amendment, I could not see any such paragraphs in thejudgement where court based its reasoning on the ‘doctrine of necessity’. (My Point is theargument of Respondents and Views of Court is not clearly forth coming. However, overallunderstanding from the judgement is that CA has power to amend Constitution till the timenew Constitution is not promulgated.)The SC has decided another matter in relation to the Eighth Constitutional Amendment of ICN,2007 where the procedural issue arose as to whether the nomenclature of CA should be asParliament when it presents bills, passes them into law and publishes them into NepaleseGazette. Of Course, the petition and verdict also extensively deals with the substantive nature ofthe 8th Amendment.The matter was decided in Advocate Bal Krishna Neupane v. The Office of the President,Maharajgunj, Kathmandu and Others and Bharatmani Jangam v. The Office of the President,Maharajgunj, Kathmandu and Others (Special Writ No. 066-WS-0056). 6
  7. 7. In this case, one of the interesting arguments of the petitioner on procedural aspect was asfollows6:“The Preamble of the Eighth Amendment of the Constitution which was published on 14th Jestha,2067 BS (i.e. on May 28, 2010) on Nepalese Gazette has mentioned that this Amendment hasbeen issued as per Article 83 (1)7 of Interim Constitution of Nepal, 2007. Article 83(1) is not anArticle for Constitution Amendment. The right to Constitution Amendment has been provided byArticle 1488. The Constitutional Provision governing Constitutional Amendment is that Article148(1) states that a bill can be presented in a Legislature Parliament for amendment or deletionof any Article of the Constitution and as per Clause (2) of same Article, the bill presented underClause (1) shall be deemed to have been passed if have been voted in favour by two-third of themembers out of total members of Legislature Parliament present. Therefore, the defendant willget power to amend Constitution by virtue of Article 148 alone. Article 83 will only give power tothe CA also to act as a Legislature Parliament – i.e. in a dual role as CA and LegislatureParliament. This Article (Article 83) does not empower Parliament to amend the Constitution.”The above arguments are on the procedural issues.To appreciate the judgement regarding substantive issues, it is pertinent to note down twoArticles in ICN, 2007 and they are Article 64 and Article 82, among others. In Article 64 of ICN,it has been mentioned that the duration of CA shall be two years from the date of its first meetingand can be extended for a period of another six months in case of emergency whereas Article 82mentions that the functioning of the CA shall cease from the date of promulgation ofConstitution passed/drafted by CA.6 The facts have been stated in brief to understand the subject matter of the contention.7 “83. Acting in the capacity of Legislature-Parliament - (1) Not withstanding anything contained elsewhere in thisPart, the Constituent Assembly shall also act as Legislature-Parliament as long as the Constituent Assemblyremains in existence, and the Constituent Assembly may constitute a separate committee to conduct necessaryregular legislative functions.”8 “148. Amendment of the Constitution - (1) A Bill regarding amendment or repeal of any Article of the Constitutionmay be presented in the Legislature-Parliament.(2) The Bill shall be deemed passed if the Bill so presented is approved by at least two-thirds majority of the totalnumber of existing members.” 7
  8. 8. So, these two articles can run counter to each others. What will happen if Constitution is notpromulgated within 2 years 6 months? Can Article 82 save Article 64 or Will Article 64 killArticle 82? Harmonious Interpretation? This needs serious discussion but the judgement fails todo.In the judgement, the ‘doctrine of necessity’ and ‘the doctrine of compulsion’ have beenextensively discussed and these two principles, again, get a very vibrating life. The Court refersthe situation as ‘inevitable necessity’.The Court, in page 32 of the judgement adds a caution that doctrine of necessity can be invokedonly in exceptional situations where it can be proved that all that was done was as mandated bylaw and with all utmost efforts. While looking at Article 64 of ICN, it says that literalinterpretation of the Article is to be applied as its meaning and content are simple andunambiguous. Therefore, the court states that the provision contained in Article 64 is amandatory and not just a directory or guiding provision. Therefore, the ruling in Writ PetitionNo. 066-WS-0050, which had held that two years time period envisaged in Article 64 to be adirectory, has been overruled to that extent.Let’s recall the events here. CA term expired in June, 2010 and its term was extended by a year2011, June by Eighth Amendment of the ICN, 2007 which amended Article 64 of the ICN, 2007.Against this, when a writ was preferred, the SC gave its verdict on 2011, May three days beforethe extended period of one year came to an end9.The Hon’ble SC held that the extension of the term of CA for a period of more than six months isnot per Constitution. But, SC refused to strike and nullify the actions taken by CA within the last9 Not to be confused, there are two judgments relating to validity of 8th Constitutional Amendment. The first one isby a bench of three judges decided in (Writ No. 066-WS-0050) and second is by bench of five judges decided in(066-WS-0056). The second judgement overruled the previous judgement on 8th Amendment of Constitution but ineffect, they produced the same result. The one year extension of CA term was held valid by bench of three judges butthat was declared invalid or rather undesirable by bench of five judges. Surprisingly, SC refused to strike theactions taken by CA in that period as there were only three days left for CA to complete that one year extended termon the day of verdict (interesting and beyond understanding). 8
  9. 9. 11 months and 27 days on the ground that since majority of time period have elapsed, and‘doctrine of necessity’ demands that those actions taken, though the extension of term of CAitself is unconstitutional, are valid. This is in my humble opinion and with due respect to ApexCourt, is a completely flawed decision.On this context, the ‘doctrine of necessity’ has come to take its place in Nepalese ConstitutionalLaw development.In the opinion expressed by the Hon’ble Court, it will be proper and legal to extend the term ofCA only for a period of six months when the tenure are extended with bonafide intention. TheSC added that there is a limitation on the power of CA when it comes to extension of its tenureand that has been clearly permitted only for a period of six months. Therefore, in anycircumstances, the tenure of CA cannot be extended for a period of more than six months on theground of non-completion of the task of framing of new constitution.Any extension of term of CA should be within the timeline permitted by Interim Constitution ofNepal, 2007 and adherences to such limitations are mandated by the law, the court further added.The innumerable extension of CA term on the guise of need for drafting of Constitution cannotbe valid as it goes against the fundamental principle/norms incorporated within the constitutionand will also be against the desires and directions expressed by sovereign people during theelectoral process.It is pertinent to note here that the Interim Constitution of Nepal, under Article 64, provides thatthe term of CA would be of two years and only when the drafting of constitution is incompleteowing to the proclamation of emergency, the CA can pass a resolution to that effect and canextend its term by another six months, noted the Supreme Court.The Court further held that the limitation clause incorporated in the Constitution under Article 64points to a very significant message that the term of CA can be extended only for six months andnot for a time indefinite, and that is also only in the situation of proclamation of emergency. 9
  10. 10. While putting down its verdict, the court has acknowledged that it is not easy to formulate acommon political roadmap among the political parties with diverse background and ideologies.Therefore, it has been noted that despite maximum genuine efforts by all political parties, if thetask of drafting of constitution is incomplete and if there is no other viable alternatives than theextension of the term of CA, the same can be resorted to under Article 64 of NepaleseConstitution, however, subject to limitation provided therein.Therefore, it gives a message to me that SC resorted to a very liberal interpretation and gave a goahead in extension in CA’s term despite there not being any proclamation of emergency. But,any extension cannot exceed for more than six months time period.In its verdict, the court has also cautioned the political parties that any unnecessary extension ofterm of CA would be the subject matter of judicial review by the court.The Court held, “the issue would be always under the subject matter of scrutiny within JudicialReview and therefore, the CA must complete its main task of framing of constitution with specialactivism. It must complete the task by adhering to the objectives, directive principles and basicfoundation and structures of Interim Constitution of Nepal, 2007.”This judicial pronouncement has disagreed with the views expressed by Special Bench (‘SB’)earlier consisting of Justice Balram KC, J. Girish Chandra Lal, and J. Praksh Wosti. The threemember SB of SC had earlier held that the CA cannot be dissolved unless the new constitution isdrafted and promulgated. The judgement by FB clearly writes that the FB cannot agree with theviews expressed by SB earlier and therefore, the earlier verdict/opinion expressed by SB will bespecifically overruled, though both the verdicts arise under 8th Amendment.However, as said earlier, the FB did not agree with the main prayer of the petitioners. The courtreasoned that out of 12 months time period for which the term was extended, the time of 1 monthand 28 days have already elapsed and in this circumstance, if the prayers of the petitioners are 10
  11. 11. heeded to, then, the actions undertaken by CA would be affected on one hand, and on the other,when there are only three days left to expire the period of one year, the remedy asked for wouldnot produce any fruitful results. Therefore, the writ petitions have been dismissed and disposedoff.Case No. 3:Analysis of Judgement arising under Writ Petition No. 067-WS-0071 · The Hon’ble Supreme Court upheld the 9th Constitutional Amendment of Interim Constitution of Nepal, 2007 · The 9 th Constitutional Amendment had extended the term of Constituent Assembly by three months (from June, 2011 to August, 2011)Had the CA been able to draft and promulgate new constitution, the matter would have been putat rest but since they could not do within extended period of one year, Constitution (NinthAmendment) Bill was presented and passed by CA which extended the term of CA by furtherthree months. The term was extended from June, 2011 to August, 2011.Against this amendment, again a writ petition was filed before SC of Nepal. SC passed a verdictupholding the validity of Constitutional Ninth Amendment Act.The ICN, 9 th Amendment was challenged in the matter of Advocate Bal Krishna Neupane v.The Office of the President, Maharajgunj, Kathmandu and Others and in the matter ofBharatmani Jangam v. The Office of the President, Maharajgunj, Kathmandu and Others.On August 28, 2011; SC of Nepal has upheld the 9th Constitutional Amendment of ICN, 2007which had extended the term of CA by further three months from 2011, June to August, 2011.By quashing the petitions filed by Advocate Bal Krishna Neupane, and by Bharat Mani Jangam,the SC, again, applied the doctrine of necessity to uphold the constitutional validity of 9thAmendment. 11
  12. 12. The SC, by following its own precedent, the verdict of May 25, 2011 (judgement arising out ofWP No. 066-WS-0056 – See Case No. 2 at Page 6 for detailed discussion), held that there areno needs and circumstances to change May 25 verdict that interpreted Article 64, stating that theCA term cannot be extended for more than 6 months after its original term comes to an end. TheSC held that CA can extend its term by six months time period in a state of emergency or as perthe ‘doctrine of necessity’.In the page 4 and 5 of the judgment, the Bench quotes its observation which was expressed inWrit Number 066-WS-0056 (delivered on May 25, 2011 and discussed under case No. 2 at page6).QuoteThe making of the constitution is a very difficult task. It is not so easy to create a commondocument amongst political parties which have different ideologies and principles. Along withthe making of the constitution, the responsibility of establishing peace in the long run must havebeen very challenging. In this situation, despite being focused and even with the maximum effortsbeing put together, if the time granted for making of constitution is not sufficient, then, when theextension of the term of the constituent assembly is required to be amended under Article 64based on the doctrine of necessity, it is mandatory and proper to amend the constitution keepinginto mind the restrictive phases and the time lines enshrined under Article 64. Because even soonly when the country is in a difficult situation, the constitution has put a restriction on the timelimit that the term of the CA cannot be extended beyond the period of six months and in anordinary situation, the CA’s time period cannot be extended beyond the period of six months byshowing some extraneous reasons merely on the ground that the work of writing of constitutionis not over.There is a way out in the Constitution that the term of the CA can be extended by a period of 6months when an emergency is declared in the country. In this circumstance, on those occasionsother than the one envisaged in the constitution, if we are to accept the lengthening of term ofCA because of some other reasons by amending the provisions relating to the Amendment of the 12
  13. 13. Time Period of Constituent Assembly, then, there will be the possibility of emergence of morethan one way on extension of term of CA. Even in the case of extreme necessity, it is not possibleto sideline the underlying principle imbibed in Article 64. This is so, why because the makers ofICN have not provided/seen any possibility of extension of CA’s term by more than six monthsirrespective of the nature of emergency in the country. The makers have deliberately andconsciously put an embargo of six months on the extension so as to not give any leeway on itsmisutilisation or misapplication of the provisions on the ground of one or another kind ofemergency. Therefore, the extension of the term of CA cannot be for more than six months. Theprovision seems to be inserted in the constitution so as to check the illegal extension of the termsin the name of emergency and such provisions are inserted in the constitution to make the termof the CA – a limited and definite. The makers of the ICN have given an utmost priority to themaking new Constitution in Nepal and such provisions have been inserted (by them) to finishsuch work as soon as possible. If we are to dismiss the underlying principles envisaged in Article64 of ICN and to understand that ICN can be amended as many times and as many periodswithout any restrictions, then, it will be a cold slap on the basic dreams and expressions of ourICN makers. In a democratic set up governed by constitutional provisions, the legislature has toimplement and act even taking into consideration & without causing any displacement the basicdesires and structures that were expressed while making the constitution. This should befollowed even when the legislature parliament sits for the amendment of constitution. Otherwise,in the name of emergency (by imposing some sorts of emergency!) or by amending theconstitutional provisions for ‘Amendment of the Constitution’ – by one way or the other – therewill be a possibility of an exit way for the CA to extend its time period for indefinite time. Thereis a necessity to have unshakable faith on the spirit imposed through the language of Article 64of ICN, 2007 and that is the people should be able to make their own constitution themselves atthe earliest. This is an underlying irrefutable principle in Article 64. Therefore, it will be againstthe sovereign people’s desire expressed through election and against the direction/mandate ofpeople, and against the basic principles of ICN IF Article 64 is amended to give continuity to theterm of CA or IF term of CA is unnecessarily extended again and again. 13
  14. 14. Even when the submissions are made that the term of CA has been extended based on the‘Principle of Necessity’, the question will always arise whether such necessity exists at all andthat will be always the question of ‘Judicial Review’. Therefore, the CA, in the process ofcompleting its main task of formulating and promulgating Constitution of this country, mustshow a special activeness and must adhere to the objectives, spirit and desires expressed in ICN,2007 and must respect the people’s mandate and directions.UnquoteAfter reproducing the literature on the need of urgency in the promulgation of Constitution andits ties with Doctrine of Necessity, the court records that the defendants have submitted theprogress reports in constitution drafting process. By referring to the submission made byMinistry of Law and Justice, the judgment records that as per the report, very substantialprogress has already been made but some small things are to be sorted out which have beenincomplete because of some political differences. Thereafter, the judgement writes one moresentence,“In addition to that, regarding the directions shown by our verdict while disposing writ petitionon the matter arising under the constitutional validity of 8th Amendment10, we have to take it on apositive note that the Constitutional Amendment has been brought for extension of the terms ofCA for a short period of time.”11Regarding the principle of necessity, in page 9 of the judgement in second paragraph, the benchwrites that it is not an ordinary situation/incident to stamp the validity of extension of term of CAbased on ‘doctrine of necessity’. It has been further stated in the judgement that the CA has beenunable to give its best efforts in drafting of constitution and there are not enough evidences ofmaximum try to make people believe that CA and CA members are working in the directions10 in Writ Number 066-WS-005611 Please note that the 8 th Constitutional Amendment had extended the term of CA by 12 months where as the 9 thAmendment has extended the term only by 3 months. This one statement gives us an indication on whose favour theverdict may come, but of course with some riders! for the sake of justification. 14
  15. 15. mandated by people. The judgement shows its displeasure by mentioning that the defendantshave been unable to show their sensitivity towards the points raised in the judgement arising outof WP No. 066-WS-0056.In the end, in the last paragraph of the judgement, after showing displeasure on various issues -like slow pace of constitution drafting, insincerity of law makers in making constitution, wastingtoo much of time in competition for executive posts, not being able to answer why further timeperiod is to be given for CA, the bench refuses to strike down the 9th Constitutional Amendmentand states,“Therefore, based on the analysis carried above and based on this court’s view expressed in thejudgement arising out of WP No. 066-WS-0056 also with regard to ‘Doctrine of Necessity’, wecannot agree with the prayers of striking down the constitutional validity of 9th Amendment ofInterim Constitution of Nepal, 2063. Therefore, the writ application is rejected and disposedoff…….”Case No. 4:Analysis of Judgement arising under Writ Petition No. 068-WS-0014(The Judgement is available in English in Nepal’s Supreme Court Website12. At the top of thejudgement, it has been mentioned,“Those state organs exercising the power delegated by the sovereign people shall have no rightto use the doctrine of necessity as a tool of defense for concealing there repeated omission ofduty and long indecisiveness having direct impact on the fate of nation and her people.”)Finally, the Hon’ble SC has woken up to find the mischief of ‘doctrine of necessity’. · In this case, the Hon’ble Supreme Court had to consider the constitutional validity of 10 th Amendment of Interim Constitution of Nepal, 2007. · The 10th Constitutional Amendment had extended the term of Constituent Assembly by three months from September, 2011 to November, 2011)12 15
  16. 16. In its summary of judgement, the court has mentioned as below: · Where there is a clear specification of time limit, the action thereof must be done or completed within the time limit so specified. The time period stipulated in Article 64 of the Interim Constitution for the making of a Constitution through Constituent Assembly must not be taken as a formality or a show. · While framing the Interim Constitution, its framer had a fine speculation on the necessity of time specification in order to cause the timely promulgation of it. If this truth is undermined and attempted to draw an archaic interpretation of the original spirit of Article 64 of the constitution to mean that the right to amend constitution includes also the right to extend time period again and again by pushing the task of promulgating……………..constitution into uncertainty, it shall go against the mandate given by the people. It is also unreasonable through the view point of the constitutional jurisprudence to unusually extend its time period by the Constituent Assembly itself so as to create a limitless and uncertain situation. · It is in fact a legitimate expectation of people to be assured in the timely making of the constitution when the Constituent Assembly itself has announced the work plan and time schedule of bringing the constitution in order to satisfy the just expectations of the people. Any agency which is bestowed with a historical liability of making constitution is bound to respect such legitimate expectation of the people and become responsible to fulfill the pledges accordingly. If it fails to fulfill its responsibility within the time frame so prescribed and extends time limit again and again on its own accord this trend not only develops a situation of uncertainty and dilemma but also raises question in the legitimacy of its work. One of the key features of democratic rule is to provide also a government accountable to the people in such a rule, the pledges made before the people are required to be fulfilled. In the failure of which people shall have right to ask the reason why? In this it will be wise to take and perceive the present writ petition as part of seeking the reply of that accountability. 16
  17. 17. · The respondent agencies are found reluctant and differed to fully capitalize the intent of the constitutional interpretations made in the decisions with clear expression and called for demonstrating their worthiness. Although both the earlier writs were vacated, however, there were made elaborative discussions on the legitimacy of the amendment of Article 64 and defined doctrine of necessity including the time limitations and are based on clear justification of the fact auxiliary to it. No serious attention was found paid on the reasoned proposition made by this court and the judicial viewpoints expressed in them. In such a situation, a conclusion derived only taking their vacation as threshold cannot be held as worthiness to claim that the frequent amendments in Article 64 is recognized and given validity.· It is worthless to repeatedly mention that the only duty of CA is to make constitution. The mere echoing of such a gospel time and again will not help to reach a meaningful conclusion. It is equally unwise to neglect Article 64 and state that the tenure of the CA will be terminated only after the CA makes constitution and brings into operation. In fact, the intention of Article 82 is not to prolong the time period and make it uncertain by effecting frequent amendments in Article 64 nor such rationality of extending the CA term up to the unknown future will be logical.· It is not a judicially manageable subject about whether to form a new CA in pursuant to Article 63 of the Interim Constitution, 2063 resorting on the fact that the making of constitution is not possible by the existing CA or give it continuity and ratify the commitment it may make for writing a constitution within a fixed time period by conducting referendum or think about other options available to the people to ensure their right of making a new constitution. Since it is purely a political issue, the solution thereof must be sought by the political level remaining within the boundary of constitutional framework, not going beyond it.· There is likely to be created a situation of looming suspicion and doubt among Nepali people about whether the issues associated with democracy, peace, prosperity and the major economic and social changes also may fall into the crisis of overall problems to be furthered along with the continuation of transitional period . To free the people from such 17
  18. 18. a fear, there is no option available to the court for now other than giving assurance of coming new constitution through the existing CA itself. This court is not also in favor of making an attitude of continuing such an agency forever as universal and option less which cannot fulfill its major responsibility of bringing a constitution till the uncertain future. Any agency or body created under the constitution by assigning certain duties and responsibilities will have also a fixed reasonable time limit and duration, the present Constituent Assembly also cannot be an exception to it.· Any individual or institution liable to discharge the assigned duties and responsibilities when fails to do so by his incapacity or due to arising a situation beyond control is referred to as a circumstance beyond control. It is the very intent of the doctrine of necessity. If such a situation cannot be neglected or avoided and it compels to take a decision and if such a decision would not have been lawful even in a normal situation and the reasonableness and legality of occurrence of such a condition is when substantiated by the time and situation, the doctrine of necessity could be attracted. Provided that, the doctrine of necessity cannot be applied in concealing ones own fault, inaction and the problems created by one.· It does not shove! (Or serve?) to any lively organization to take the doctrine of necessity as tool of defense for one’s own miscreants. The constitution always hopes the positive response and liveliness on its and its components’ doings. The constitution is such a lively instrument which bears the capacity of operating the whole state mechanism actively and dynamically even when there are possibilities of arriving multifold of obstacles, a hardships and difficulties across the life of the nation. So, a constitution does not imagine a situation of lifelessness of the state which impairs the whole process by considering the one and the same problem as the never ending one.· The aspirations of Nepalese people to bring about a new constitution through the Constituent Assembly, the fund consumed by the state to date after the initiation of constitution making process and to secure the achievement CA has accomplished up to now in course of drafting the constitution are the most significant constitutional responsibilities to be carried out by this court. It is natural to expect that all possible 18
  19. 19. efforts will be made to promulgate the constitution within the time period extended by the tenth amendment. In otherwise condition, it will be more appropriate and justifiable to provide the last opportunity to the present CA if it needed the additional time period in order for the completion of remaining works and bring about the constitution.The Special Bench of Supreme Court consisting of five Justices had to deal, once again, the onemore Constitutional Amendment of Nepal – i.e.; the 10th Constitutional Amendment which hadextended the term of CA by three more months from September, 2011 to November, 2011. TheConstitutional Amendment was brought on 14.05.2068 BS (31st August, 2011).The matter arises in relation to a Writ Petition in Bharatmani Jungam & Others v. The Officeof the President & Others (68-WS-0014).In Page 19 of the Judgement, the Hon’ble SC writes,“This court is not in favor also of making a view of continuing such an agency as universal andoptionless which cannot fulfill its major responsibility of bringing constitution till the uncertainfuture. Any agency or body created under the constitution by assigning certain duties andresponsibilities will have a fixed reasonable time limit and duration, the present constituentAssembly also cannot be exception to it.”From the above paragraph, I see the seriousness of the Court and am inclined to think that theCourt is going to set a time limit within which CA must promulgate a Constitution!Reacting on the frequent power struggles among the political parties and change inGovernments, the Hon’ble Court writes,“It is not the intent of the Interim Constitution to cause frequent amendments to the constitutionand extend its term and establish it as a everlasting institution by putting priority only in theforming and dissolving the government in capacity of Legislature-parliament by showing oneselfreluctant towards the key responsibility ignoring the task of making the constitution. The Article 19
  20. 20. 64 of the constitution had no such speculation nor does the doctrine of necessity recognize thistype of trend.”Thereafter, in many Paragraphs, the Court keeps on repeating, reiterating and reminding thepresent CA that it is their duty to write a new Constitution in Nepal and the CA must do thiswithin the reasonable timeline prescribed.The Court also states that on the name of necessity, there cannot be indefinite extension of termof CA and therefore, the court states that CA shall be given a last extension of six monthsmaximum period and there shall not be any more extension on the term of CA. That means, thepresent CA must draft and promulgate Constitution in Nepal by May, 2012 and court believesthat it can do so. But, in the case that the CA is unable to promulgate a constitution within thefinal timeline, then, it has to search the way for acceptable political situation and not for furtherextension of term of CA.The Court does not clearly state what the government and CA should do in case they fail topromulgate a new Constitution within the given timeline. However, the Court believes that suchway outs are political in nature and found not through court directives but by politicaldeliberations. Therefore, finally, the Hon’ble Court states,“……………………………..Now therefore the Constituent Assembly shall ascertain theachievements made after the formation of present CA those yet to be finalized in relation tomaking the constitution and so as not exceed the duration stipulated by the restrictive Clause ofArticle 64 of the Interim Constitution of Nepal, 2063 and the time period likely to be actuallyneeded for the last chance and complete the task of constitution making within the said periodand , in case the writing of the constitution could not be completed within the given period, thetenure of CA will be ipso-facto terminated thereafter. Hence, this (directive) order is issued inthe name of respondents, the chairperson of the Constituent Assembly and the Government ofNepal, Office of Prime Minister and the Council of Ministers, to conduct or have conductednecessary activities and make required arrangement either for conducting referendum under 20
  21. 21. Article 157 or for holding election of the fresh Constituent Assembly or any otherarrangements as provided in the constitution.Therefore, as per the above verdict, the CA must draft and promulgate Constitution in Nepal byMay, 2012.The case under discussion is in relation to extension of term of CA by three months fromSeptember, 2011 to December, 2011. The SC had no other option but to approve suchamendment (The Judgement is delivered on 25th November, 2011) with lots of displeasure and inits verdict, SC makes it clear that another maximum six months extension can be given (afterDecember, 2011) which effectively means the CA must perform by May, 2012. Or, it shallperish!Thereafter, 11th Amendment of the Constitution has been passed in November, 2011 to extendthe term of CA by another six months from December, 2011 to May, 2012. As per the aboveverdict, this six months time period is a last opportunity for CA to fulfill what it had promisedfour years back in 2008, May – CA Elections.Remember that there are in total 4 Amendments of ICN, 2007 only to extend its term. They are:A. 8 th Amendment of ICN – extended term of CA from 2010 June to 2011, June (1 year)B. 9 th Amendment of ICN – extended term of CA from 2011 June to 2011, August (3 months)C. 10th Amendment of ICN – extended term of CA from 2011 September to 2011, November (3months)D. 11th Amendment of ICN – extended term of CA from 2010 December to 2012, May (final 6months!)After the above verdict, the Office of PM and Chairman of CA cum Legislature Parliamentwanted SC to review its verdict. Initially, SC refused to register a review application/petition onthe matter. Against this rejection to register a review application, when another application was 21
  22. 22. preferred, SC, a bench of Single Judge, (J. Kamal Narayan Das) rejected the application and heldthat refusal to register a review application is proper and legal13. Therefore, it can be well saidthat the term of CA will finally expire on end of May, 2012.Thereafter, the last date for CA in Nepal to act legitimately and if possible, to promulgateconstitution is unchanged and stands to be end of May, 2012. The Activists Advocates deserve apat on their back for making Courts, finally aware on the ill-effects brought by doctrine ofnecessity and hopefully, the last verdict would be the graveyard for this unmeritorious (il) legalprinciples in Nepalese Legal and Constitutional History.If political parties have even a trace of honesty and seriousness, it will be a defining moment inNepalese History – another less than two months. Barring personally me, Nepalese people havestill some hope that we will be getting a New Constitution in Nepal if political parties showgenuine interest in performing their duties. If not, we are left with no options except to expectsome heavenly intervention. This is how Nepalese Political system is marching backwards! Inthe recent past.Regarding Constitutional Law Development, most of the time, the reasoning of the courtsrevolves around aspiration and their own desires to see new Constitution. There are not enoughprecedents cited in judgement to back their writings. The Learned Justices put down acontinuous circle of arguments – what CA is expected to do on the hope that the CA understandsits responsibility. But, finally, SC realised that the drama of ‘necessity’ and ‘compulsion’ wouldnot be a strong fortress forever for CA to hide its incompetency. Thereafter, the deadline wasinserted in functioning of CA.The positive is that SC did not insert a cutoff date for CA on the basis of ‘doctrine of necessity’!!13 22
  23. 23. This, in a way, small victory for people like me who have no respect for this autocratic principle. © Rajib Dahal, Advocate. I can be reached at 23
  24. 24. Against the doctrine of Necessity, I had earlier written a small Article in telegraphnepal.comwhich you can read from the link below: 24