May 30, 2012
In the last week Nepal has gone from boasting that it would complete the new constitution by the mandated deadline, to having no legitimate government at all. Prime Minister Bhattarai’s move to disband parliament (while maintaining his own position) until November elections would be held – without bothering to discuss his decision with the other political parties – has enraged the growing opposition on the grounds that Bhattarai’s pronouncement is but the newest Maoist ploy to capture state power.
No one should pretend to be shocked. It is the predictive outcome of an internecine navel-gazing government that behaved as if it had all the time in the world while relying on the “doctrine of necessity” instead of legitimate governance. All of the parties share the blame for the resultant chaos. Since 2008, at one time or another, all of the parties have helped support backdoor solutions that ultimately weakened the scaffolding of the people’s desire for a “New Nepal”.
The “doctrine of necessity” maintains that state actors can, when “necessary”, undertake unconstitutional, extra-legal or otherwise invalid actions so as to restore order.
Daniel Lansberg-Rodriguez, in his essay recently published by constitutionmaking.org described it thusly:
While other countries have invoked the device as a “get out of jail free card” to be used in the wake of complete political breakdown, the doctrine is fast becoming a governmental norm in Kathmandu something along the lines of an ad-hoc proxy constitution.
This troubling trend began in April 2010 when the Nepalese Supreme Court determined that any article of the interim constitution not affecting“ a basic human right” could be amended by parliamentary leaders if the doctrine of necessity was invoked and the action approved by the judiciary. The frustrated leaders of the heavily polarized Nepalese parliament have since grown to rely on the doctrine when unable to secure the necessary consensus to govern in accordance with the interim constitution they themselves championed. Relying on the Supreme Court as a back door mechanism with which to make their ideas law, the device has been used twice to extend the deadline before which a new, and ostensibly permanent, constitution must be put into place.
The real problem with this doctrine is that “necessity”—the validating trigger for illegal action—is by nature mercurial and what may seem the only option at a given time will rarely be thought to have been so in hindsight. By bypassing the existing constitutional framework state actors may facilitate short term solutions but they also create precedents that can weaken governmental legitimacy for a very long time. Worst yet, the concept of "necessity" is also highly subjective and in the context of governance those actors in the position to determine “necessity”, and those with the best access to information, are almost always the ones with the greatest potential conflicts of interest regarding the outcome of the determination itself.
Constitutions are supposed to set up a structure for governance, define protocol, separate responsibilities and limit governmental power. The use of the “doctrine of necessity” as a legal justification for what is essentially a governmental adhocracy undermines the value of the existing interim constitution, compliance with which will go a long way towards empowering its successor. If this trend continues, then the governmental structures of the new constitution currently being debated in Kathmandu—the disagreements over which have caused much of the current governmental paralysis—will be rendered irrelevant as the new constitution (much like it’s “interim” predecessor) will likely be a sham.
The deadline for finishing the constitution has come and gone. While the political parties dust off and drag out the blame game, the country is left with no mandate and no parliament to pass laws – and perhaps more important, no parliament to monitor Bhattarai’s upcoming decision-making.
It is all the more important, then, for the people of Nepal to be extremely vigilant in watching the Maoists’ game plan. Will Bhattarai rely on the “Doctrine of Necessity” to further the Maoist agenda? And will the people stand for it?
Senior journalist Yubaraj Ghimire put it this way: Bhattarai’s proposed November election “is clearly meant for state capture. But the Maoists haven’t taken into account the erosion of their credibility and loss of face in the past years. Contrary to being in an advantageous position, I think the Maoists are now isolated and cornered.”
This summer may reveal to what extent Ghimire’s assessment holds true.