Emergency power is a constitutional weapon of government in every state for solving the critical and serious situation of the country. In an emergency period, a state can suspend various fundamental and legal rights, therefore we can say emergency is a necessary evil for a country. It is said that people have to tolerate smaller obstacles for the protection from greater injustice. The threat of sovereignty (by external ground), natural disaster, rebellion, extreme economic….etc are the grounds for an emergency.
Emergency power in the context of Nepal:
l Government of Nepal Act, 1948:
all power was in PM
l Interim constitution of Nepal, 1951:
no clear provision
l The Constitution of the Kingdom of Nepal, 1959:
King could use emergency power/The first elected government of Nepal was dissolved by this power
l The Constitution of Nepal, 1962:
All articles could be suspended except Article 81 (emergency provision) by King
l The Constitution of the Kingdom of Nepal 1990:
Declared king as Constitutional Monarch. King could declare an emergency at the recommendation of the Council of Ministers and necessary to approve by the House of Representatives by a 2/3 majority.
l The Interim Constitution of Nepal, 2063:
President could declare an the emergency in recommendation of the Council of Ministers
But the order had to be ratified with a 2/3 majority of the Legislature-parliament
Present Constitution of Nepal; Constitution of Nepal,2015.
Grounds for emergency:
l Serous problems in the sovereignty or territorial integrity of Nepal
l The security of any part of Nepal by war, external attack, armed revolt
l Extreme economy disarray
l Natural calamity
l Epidemic
l President has the right to declare an emergency
l Province government also may request Nepal's government to declare an emergency in the concerned province or any specific area of the province on the grounds of natural calamity or epidemic.
l The order shall be presented before the meeting of both houses of the Federal Parliament for approval within a month from the date of its issuance.
l If approved by a 2/3 majority of the total numbers present at the meetings of both Houses of Federal Parliament.
l Such order shall continue in force for a period of three months from the date of order.
In case of the continuation of the situation, the proposal to extend the period of the order of emergency for less than another 3 months may be forwarded to the Federal Parliament. The order will be continued for a said period if it is approved by the 2/3 majority of both Houses. In case of dissolution of the House of Representatives, the power of the Federal Parliament shall be exercised by the National Assembly. The president can issue other necessary orders to meet the exigencies.
While issuing the order some fundamental rights may be suspended but some fundamental rights shall not be suspended which are following:
Article 16, subclauses (c) and (d) of clause (2) of Article 17, Article 18, clause (2) of Article 19, Articles 20,21,22 and 24,clause (1) of Article 26, Articles 29,30,31,32,35, clause (1) and(2)of clause 36, Articles 38 and 39, clauses (2) and (3) of Article 40, Article 41,42,43 and 45, the right to constitutional remedy in relation to such Articles pursuant to Article 46 and right to habeas corpus shall not be suspended.
Due to suspended rights, no one can go to court for remedy in an emergency period. However, the affected person can file a petition for compensation for damage within three months from the date of termination of the order. In case the petition is filed, the court may arrange for the appropriate compensation, or punish the guilt according to Federal law. The president may, at any time, withdraw such order of state of emergency made in accordance with this Article
In the case of Sumina Pradha and others vs. Ministry of Home and others DN 7467, NKP 2061, P 1396, the Supreme Court has held that although an emergency can be declared, even at the time of emergency if someone is detained illegally through habeas corpus a remedy can be sought and right against illegal detention exists.
Hence, while focusing on emergency powers, it shall be noted that some of the fundamental rights can be derogated while others cannot. (Most important: See. Art. 273(10) of the new constitution which mentions what sort of right can be derogated and what right cannot be derogated.)
0 Comments