HoR Proclamation was based on the ‘Doctrine of Necessity’: Aryal


Former Justice of the Supreme Court and one of the drafters of the 1990 Constitution, Laxman Aryal courted arrest along with other civil society activists by defying the curfew orders last month. He was released only after the reinstatement of the House of Representatives (HoR). Justice Aryal spoke to Nepalnews on the significance of the proclamation endorsed by the reinstated House on Thursday. Excerpts:

What is the significance of the HoR Proclamation?

The proclamation came as per the "Doctrine of Necessity" of law. The parliament had to make this proclamation as per the need of the hour since there was a situation in which the existing laws could not function and it would take time to amend existing constitution and laws. But popular expectation was so high that the parliament had to make this announcement to immediately address people's aspiration in the aftermath of the recent 'jana andolan.'

What is the political significance of the declaration? Don't you think it will set a wrong tradition?

The proclamation is quite natural from political point of view. It has incorporated political agenda raised during the people's movement. Bringing the Army under the purview of the parliament and scrap Rajparishad were agenda mainly raised during the people's movement. There was a need of interim constitution to incorporate the agendas raised during the people's movement but as it takes time to formulate interim constitution, the reinstated House made the announcement as a short-term measure to address these issues. As the delay in the announcement resulted into violence the cabinet made the decision to address the demands of the people. Though the declaration is not as per the rule of law and legal theory, it was made on the basis of need-based theory to address people's aspirations expressed during the people's movement. Since the proclamation will cover a period until new constitutional mechanism is brought into place, I hope it will not set a bad precedent.

Will the proclamation assist for the talks with Maoists and election s for the Constituent Assembly?

The proclamation would assist for moving to the election of the constituent assembly and also for holding talks with the Maoists. As Maoists have said the proclamation has incorporated some agenda raised by them since long, it will create conducive environment for talks. It will also help to gradually discuss the agenda of the election of the constituent assembly and prepare conducive environment for it. The issues of talks should be addressed gradually, so that the sovereign parliament would move ahead by addressing the agenda of talks and creating conducive environment for talks. We have to take the proclamation not as the parliament becoming the supreme but the people becoming sovereign, because people have forced the parliament to make this decision.

Is there a need for forming an interim constitution before the election s for the constituent assembly ?

Yes, there is an immediate need of forming interim constitution to go for the elections for the constituent assembly. The proclamation is not a law. It is for a very short period of time and was announced to fill the gap in a situation as the present constitution was not functioning and it would take time to hold talks with the Maoists and formulate an interim constitution. The proclamation was made to fill the legal space and to govern the country through some legal mechanism. This proclamation should not go for long. The announcement was a result of unique situation created by the people's movement, so it is only for a short term. It was announced to create conducive environment for forming interim government to go for the election of the constituent assembly. As we are moving through some established system the transitional period may seem uncomfortable to us but the announcement is aimed at resolving the problem dogging the country.

As one of the framers of t he constitution of the kingdom of Nepal , 1990– which is considered one of the best constitution s of the world —what do you think is the major reason for its failure?

The situation emerged not due to the weakness of the 1990 constitution, but because of the environment emerged from the Maoist insurgency. The situation developed in such a way that it went beyond the expectation of the Maoists, resulting into unity between political parties against whose governments they had initially declared their revolt. The constitution reached in such situation due to the Maoist revolt and consequences created thereof, not because of the inherent weaknesses in the 1990 constitution.

nepalnews.com Pratibedan Baidya May 21 06

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