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The Doctrine of Necessity in Nepal – Frequent Amendments in Interim Constitution, and

finally Supreme Court’s realization – a brief case study1

The recent constitutional development in Nepal only points out to me a chain of judicial

inconsistencies and bizarre reaction to socio-political developments. To my knowledge, there are

few 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 King

Gyanendra 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 called Bikram Sambat) to usurp the power from democratically elected government. Though the

Supreme Court did not directly entertain and address the issue on the garb of prohibition by

Constitution on the actions taken by His Majesty, but more or less, it made clear that such

actions were required at that time.

Thereafter, people came to streets demanding restoration of democracy and dissolved parliament

and when king realised that he cannot handle it anymore, democracy was restored and parliament

was reinstated2. The reinstated Parliament replaced the old Constitution of 1990 by Interim

Constitution of 2007 and decided that an election for Constituent Assembly (CA) will be held to

frame a Constitution of ‘New’ Nepal. The election was conducted in April, 2008 and CA started

functioning from 2008 May. Originally, the CA was constituted for a period of two years with a

mandate that a new Constitution for ‘New’ Nepal would be framed by then. But, Article 64 of

Interim Constitution of Nepal, 2007 also created a provision stating the tern of CA can be

extended by further six months in case the task of constitution framing is not completed due to

the 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 with sufficient disclosure of copyright holder. For suggestions and feedbacks, please reach me at rajib.dahal@gmail.com 2 The reinstatement of parliament was also questioned before the highest court of the country and court cumulatively replied that ‘doctrine of necessity’ calls for revival of house and king has such power.

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“64. Term of the Constituent Assembly - Unless otherwise dissolved earlier by a resolution

passed by the Constituent Assembly, the term of the Constituent Assembly shall be two years3 from the date of its first meeting.

Provided that the term of the Constituent Assembly may be extended for up to six months by a

resolution of the Constituent Assembly, in the event that the task of drafting the Constitution

is not completed due to the proclamation of a State of Emergency in the country.” (Unofficial

Translation 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 occupied

with the fighting among them to grab power. Only thing which was evident on them was their

lack of seriousness and political apathy. As expected, they again failed to perform their duties

and there was no other way than extending the term of the CA. There was no case of any

proclamation of emergency and therefore, the basic requirement as per Constitution to extend the

term of CA was not fulfilled. However, all the political parties went ahead, passed a resolution in

the 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 in

2008 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 3

months, from 2011 May to August, 20115.

On this background, you may understand why the doctrine of necessity was given life to in

Nepalese Constitutional Development. I have already mentioned about how doctrine of necessity

came into picture for the first time in recent times in Nepal. But that was under the old 3 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.

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Constitution of 1990. Under the Interim Constitution of 2007 (in some places, may also be

referred as ICN or ICN, 2007 or ICN, 2063), Writ Petitions were/have been filed before Apex

Court for deciding different constitutional amendments and on these writs, Doctrine of Necessity

found its place.

Therefore, this note will discuss the case laws from Nepalese Supreme Court which had applied

the doctrine of necessity when validity of Constitutional Amendments under ICN, 2007 was

questioned 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 the

power to conduct proceedings against judges who will be elevated to Supreme Court from

Appellate Court or when they are picked from fraternity at the Bar. This was a very strange (at

least to me!) and newly introduced provision and Writ Petitions were filed before SC to strike

down the constitutional validity of this one. This provision of Parliamentary proceedings against

judges was not there in original ICN, 2007 when it was promulgated on January 15, 2007. The

provision for parliamentary proceedings was inserted in the Constitution by Second

Amendment of Constitution on June 13, 2007.

The exact provision that was challenged under the Interim Constitution of 2007 was Article 155

and 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 Constitutional

Council according to this Constitution, and to * the appointment of the Judges of the Supreme

Court and ambassadors, there shall be a parliamentary hearing in accordance with the

provisions of the law.

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(2) In order to be eligible for appointment to constitutional positions under this Constitution, a

person must be a citizen of Nepal by descent or birth or by naturalization and have lived in

Nepal for at least ten years.” (Unofficial Translation of Nepalese Text of the Interim

Constitution, 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 was

preferred, the Hon’ble Supreme court held that Article 155 is constitutional and refused to strike

it down. In one of the Paragraphs of the order, SC made use of ‘doctrine of necessity’ to say

what it wanted to say.

The paragraph goes like this: (Unfortunately, SC has not given paragraph numbers but in the

order which I downloaded from SC’s website, the judgement has spread over 66 pages and I am

quoting from page 29.)

“…………other than those things, for managing intervening period and for the necessary

preparation and writing of constitution which is based on principles of democracy,

republicanism, federalism; Constitution can be amended by following the constitutional

procedure 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 provision

regarding parliamentary hearings before judges are appointed in the Apex Court.

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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 8th 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 8th 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.

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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 Kamlesh

Dwivedi 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 the

Eighth Constitutional Amendment of ICN, 2007 was valid. The Eighth Constitutional

Amendment 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 a

period of two years. The Apex Court upheld such amendment. It seems that few of the

respondents in the matter, in their defence and reply, submitted that such amendment is valid

also on the ground of ‘doctrine of necessity’. In page 7 of 36 pages judgement (downloaded from

Website of Supreme Court of Nepal: http://www.supremecourt.gov.np/ ), though it is not clear

but it seems to me that Ministry of Federal Administration, Administration of Constituent

Assembly and Culture AND Ministry of Law and Justice submitted that ‘unless there are some

provisions which are clearly mentioned as unamendable in the constitution itself, all other

provisions 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 the

judgement where court based its reasoning on the ‘doctrine of necessity’. (My Point is the

argument of Respondents and Views of Court is not clearly forth coming. However, overall

understanding from the judgement is that CA has power to amend Constitution till the time

new 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 as

Parliament when it presents bills, passes them into law and publishes them into Nepalese

Gazette. Of Course, the petition and verdict also extensively deals with the substantive nature of

the 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).

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In this case, one of the interesting arguments of the petitioner on procedural aspect was as

follows6:

“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 has

been issued as per Article 83 (1)7 of Interim Constitution of Nepal, 2007. Article 83(1) is not an

Article for Constitution Amendment. The right to Constitution Amendment has been provided by

Article 1488. The Constitutional Provision governing Constitutional Amendment is that Article

148(1) states that a bill can be presented in a Legislature Parliament for amendment or deletion

of any Article of the Constitution and as per Clause (2) of same Article, the bill presented under

Clause (1) shall be deemed to have been passed if have been voted in favour by two-third of the

members out of total members of Legislature Parliament present. Therefore, the defendant will

get power to amend Constitution by virtue of Article 148 alone. Article 83 will only give power to

the CA also to act as a Legislature Parliament – i.e. in a dual role as CA and Legislature

Parliament. 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 two

Articles 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 meeting

and can be extended for a period of another six months in case of emergency whereas Article 82

mentions that the functioning of the CA shall cease from the date of promulgation of

Constitution 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 this Part, the Constituent Assembly shall also act as Legislature-Parliament as long as the Constituent Assembly remains in existence, and the Constituent Assembly may constitute a separate committee to conduct necessary regular legislative functions.” 8 “148. Amendment of the Constitution - (1) A Bill regarding amendment or repeal of any Article of the Constitution may 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 total number of existing members.”

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So, these two articles can run counter to each others. What will happen if Constitution is not

promulgated within 2 years 6 months? Can Article 82 save Article 64 or Will Article 64 kill

Article 82? Harmonious Interpretation? This needs serious discussion but the judgement fails to

do.

In the judgement, the ‘doctrine of necessity’ and ‘the doctrine of compulsion’ have been

extensively discussed and these two principles, again, get a very vibrating life. The Court refers

the situation as ‘inevitable necessity’.

The Court, in page 32 of the judgement adds a caution that doctrine of necessity can be invoked

only in exceptional situations where it can be proved that all that was done was as mandated by

law and with all utmost efforts. While looking at Article 64 of ICN, it says that literal

interpretation of the Article is to be applied as its meaning and content are simple and

unambiguous. Therefore, the court states that the provision contained in Article 64 is a

mandatory and not just a directory or guiding provision. Therefore, the ruling in Writ Petition

No. 066-WS-0050, which had held that two years time period envisaged in Article 64 to be a

directory, 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 year

2011, 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 before

the 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 is

not per Constitution. But, SC refused to strike and nullify the actions taken by CA within the last

9 Not to be confused, there are two judgments relating to validity of 8th Constitutional Amendment. The first one is by 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 in effect, they produced the same result. The one year extension of CA term was held valid by bench of three judges but that was declared invalid or rather undesirable by bench of five judges. Surprisingly, SC refused to strike the actions taken by CA in that period as there were only three days left for CA to complete that one year extended term on the day of verdict (interesting and beyond understanding).

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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 CA

itself is unconstitutional, are valid. This is in my humble opinion and with due respect to Apex

Court, is a completely flawed decision.

On this context, the ‘doctrine of necessity’ has come to take its place in Nepalese Constitutional

Law development.

In the opinion expressed by the Hon’ble Court, it will be proper and legal to extend the term of

CA only for a period of six months when the tenure are extended with bonafide intention. The

SC added that there is a limitation on the power of CA when it comes to extension of its tenure

and that has been clearly permitted only for a period of six months. Therefore, in any

circumstances, the tenure of CA cannot be extended for a period of more than six months on the

ground 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 of

Nepal, 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 cannot

be valid as it goes against the fundamental principle/norms incorporated within the constitution

and will also be against the desires and directions expressed by sovereign people during the

electoral process.

It is pertinent to note here that the Interim Constitution of Nepal, under Article 64, provides that

the term of CA would be of two years and only when the drafting of constitution is incomplete

owing to the proclamation of emergency, the CA can pass a resolution to that effect and can

extend its term by another six months, noted the Supreme Court.

The Court further held that the limitation clause incorporated in the Constitution under Article 64

points to a very significant message that the term of CA can be extended only for six months and

not for a time indefinite, and that is also only in the situation of proclamation of emergency.

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While putting down its verdict, the court has acknowledged that it is not easy to formulate a

common 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 the

task of drafting of constitution is incomplete and if there is no other viable alternatives than the

extension of the term of CA, the same can be resorted to under Article 64 of Nepalese

Constitution, however, subject to limitation provided therein.

Therefore, it gives a message to me that SC resorted to a very liberal interpretation and gave a go

ahead 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 of

term 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 Judicial

Review and therefore, the CA must complete its main task of framing of constitution with special

activism. It must complete the task by adhering to the objectives, directive principles and basic

foundation 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 three

member SB of SC had earlier held that the CA cannot be dissolved unless the new constitution is

drafted and promulgated. The judgement by FB clearly writes that the FB cannot agree with the

views expressed by SB earlier and therefore, the earlier verdict/opinion expressed by SB will be

specifically 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 court

reasoned that out of 12 months time period for which the term was extended, the time of 1 month

and 28 days have already elapsed and in this circumstance, if the prayers of the petitioners are

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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 would

not produce any fruitful results. Therefore, the writ petitions have been dismissed and disposed

off.

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 9th 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 put

at rest but since they could not do within extended period of one year, Constitution (Ninth

Amendment) Bill was presented and passed by CA which extended the term of CA by further

three 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 verdict

upholding the validity of Constitutional Ninth Amendment Act.

The ICN, 9th 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 of

Bharatmani 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, 2007

which 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 9th

Amendment.

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The SC, by following its own precedent, the verdict of May 25, 2011 (judgement arising out of

WP No. 066-WS-0056 – See Case No. 2 at Page 6 for detailed discussion), held that there are

no needs and circumstances to change May 25 verdict that interpreted Article 64, stating that the

CA term cannot be extended for more than 6 months after its original term comes to an end. The

SC held that CA can extend its term by six months time period in a state of emergency or as per

the ‘doctrine of necessity’.

In the page 4 and 5 of the judgment, the Bench quotes its observation which was expressed in

Writ Number 066-WS-0056 (delivered on May 25, 2011 and discussed under case No. 2 at page

6).

Quote

The making of the constitution is a very difficult task. It is not so easy to create a common

document amongst political parties which have different ideologies and principles. Along with

the making of the constitution, the responsibility of establishing peace in the long run must have

been very challenging. In this situation, despite being focused and even with the maximum efforts

being put together, if the time granted for making of constitution is not sufficient, then, when the

extension of the term of the constituent assembly is required to be amended under Article 64

based on the doctrine of necessity, it is mandatory and proper to amend the constitution keeping

into mind the restrictive phases and the time lines enshrined under Article 64. Because even so

only when the country is in a difficult situation, the constitution has put a restriction on the time

limit that the term of the CA cannot be extended beyond the period of six months and in an

ordinary situation, the CA’s time period cannot be extended beyond the period of six months by

showing some extraneous reasons merely on the ground that the work of writing of constitution

is not over.

There is a way out in the Constitution that the term of the CA can be extended by a period of 6

months when an emergency is declared in the country. In this circumstance, on those occasions

other than the one envisaged in the constitution, if we are to accept the lengthening of term of

CA because of some other reasons by amending the provisions relating to the Amendment of the

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Time Period of Constituent Assembly, then, there will be the possibility of emergence of more

than one way on extension of term of CA. Even in the case of extreme necessity, it is not possible

to sideline the underlying principle imbibed in Article 64. This is so, why because the makers of

ICN have not provided/seen any possibility of extension of CA’s term by more than six months

irrespective of the nature of emergency in the country. The makers have deliberately and

consciously put an embargo of six months on the extension so as to not give any leeway on its

misutilisation or misapplication of the provisions on the ground of one or another kind of

emergency. Therefore, the extension of the term of CA cannot be for more than six months. The

provision seems to be inserted in the constitution so as to check the illegal extension of the terms

in the name of emergency and such provisions are inserted in the constitution to make the term

of the CA – a limited and definite. The makers of the ICN have given an utmost priority to the

making new Constitution in Nepal and such provisions have been inserted (by them) to finish

such work as soon as possible. If we are to dismiss the underlying principles envisaged in Article

64 of ICN and to understand that ICN can be amended as many times and as many periods

without any restrictions, then, it will be a cold slap on the basic dreams and expressions of our

ICN makers. In a democratic set up governed by constitutional provisions, the legislature has to

implement and act even taking into consideration & without causing any displacement the basic

desires and structures that were expressed while making the constitution. This should be

followed 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 the

constitutional provisions for ‘Amendment of the Constitution’ – by one way or the other – there

will be a possibility of an exit way for the CA to extend its time period for indefinite time. There

is a necessity to have unshakable faith on the spirit imposed through the language of Article 64

of ICN, 2007 and that is the people should be able to make their own constitution themselves at

the earliest. This is an underlying irrefutable principle in Article 64. Therefore, it will be against

the sovereign people’s desire expressed through election and against the direction/mandate of

people, and against the basic principles of ICN IF Article 64 is amended to give continuity to the

term of CA or IF term of CA is unnecessarily extended again and again.

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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 and

that will be always the question of ‘Judicial Review’. Therefore, the CA, in the process of

completing its main task of formulating and promulgating Constitution of this country, must

show 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.

Unquote

After reproducing the literature on the need of urgency in the promulgation of Constitution and

its ties with Doctrine of Necessity, the court records that the defendants have submitted the

progress reports in constitution drafting process. By referring to the submission made by

Ministry of Law and Justice, the judgment records that as per the report, very substantial

progress has already been made but some small things are to be sorted out which have been

incomplete because of some political differences. Thereafter, the judgement writes one more

sentence,

“In addition to that, regarding the directions shown by our verdict while disposing writ petition

on the matter arising under the constitutional validity of 8th Amendment10, we have to take it on a

positive note that the Constitutional Amendment has been brought for extension of the terms of

CA for a short period of time.”11

Regarding the principle of necessity, in page 9 of the judgement in second paragraph, the bench

writes that it is not an ordinary situation/incident to stamp the validity of extension of term of CA

based on ‘doctrine of necessity’. It has been further stated in the judgement that the CA has been

unable to give its best efforts in drafting of constitution and there are not enough evidences of

maximum try to make people believe that CA and CA members are working in the directions

10in Writ Number 066-WS-0056

11 Please note that the 8th Constitutional Amendment had extended the term of CA by 12 months where as the 9th Amendment has extended the term only by 3 months. This one statement gives us an indication on whose favour the verdict may come, but of course with some riders! for the sake of justification.

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mandated by people. The judgement shows its displeasure by mentioning that the defendants

have been unable to show their sensitivity towards the points raised in the judgement arising out

of 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, wasting

too much of time in competition for executive posts, not being able to answer why further time

period is to be given for CA, the bench refuses to strike down the 9th Constitutional Amendment

and states,

“Therefore, based on the analysis carried above and based on this court’s view expressed in the

judgement arising out of WP No. 066-WS-0056 also with regard to ‘Doctrine of Necessity’, we

cannot agree with the prayers of striking down the constitutional validity of 9th Amendment of

Interim Constitution of Nepal, 2063. Therefore, the writ application is rejected and disposed

off…….”

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 the

judgement, it has been mentioned,

“Those state organs exercising the power delegated by the sovereign people shall have no right

to use the doctrine of necessity as a tool of defense for concealing there repeated omission of

duty 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 10th

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 http://www.supremecourt.gov.np/download/Constitution_Assembly_Case.pdf

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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.

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• 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

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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 one's 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

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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 one

more Constitutional Amendment of Nepal – i.e.; the 10th Constitutional Amendment which had

extended the term of CA by three more months from September, 2011 to November, 2011. The

Constitutional 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 Office

of 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 and

optionless which cannot fulfill its major responsibility of bringing constitution till the uncertain

future. Any agency or body created under the constitution by assigning certain duties and

responsibilities will have a fixed reasonable time limit and duration, the present constituent

Assembly also cannot be exception to it.”

From the above paragraph, I see the seriousness of the Court and am inclined to think that the

Court 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 in

Governments, the Hon’ble Court writes,

“It is not the intent of the Interim Constitution to cause frequent amendments to the constitution

and extend its term and establish it as a everlasting institution by putting priority only in the

forming and dissolving the government in capacity of Legislature-parliament by showing oneself

reluctant towards the key responsibility ignoring the task of making the constitution. The Article

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64 of the constitution had no such speculation nor does the doctrine of necessity recognize this

type of trend.”

Thereafter, in many Paragraphs, the Court keeps on repeating, reiterating and reminding the

present CA that it is their duty to write a new Constitution in Nepal and the CA must do this

within the reasonable timeline prescribed.

The Court also states that on the name of necessity, there cannot be indefinite extension of term

of CA and therefore, the court states that CA shall be given a last extension of six months

maximum period and there shall not be any more extension on the term of CA. That means, the

present CA must draft and promulgate Constitution in Nepal by May, 2012 and court believes

that it can do so. But, in the case that the CA is unable to promulgate a constitution within the

final timeline, then, it has to search the way for acceptable political situation and not for further

extension of term of CA.

The Court does not clearly state what the government and CA should do in case they fail to

promulgate a new Constitution within the given timeline. However, the Court believes that such

way outs are political in nature and found not through court directives but by political

deliberations. Therefore, finally, the Hon’ble Court states,

“……………………………..Now therefore the Constituent Assembly shall ascertain the

achievements made after the formation of present CA those yet to be finalized in relation to

making the constitution and so as not exceed the duration stipulated by the restrictive Clause of

Article 64 of the Interim Constitution of Nepal, 2063 and the time period likely to be actually

needed for the last chance and complete the task of constitution making within the said period

and , in case the writing of the constitution could not be completed within the given period, the tenure of CA will be ipso-facto terminated thereafter. Hence, this (directive) order is issued in

the name of respondents, the chairperson of the Constituent Assembly and the Government of

Nepal, Office of Prime Minister and the Council of Ministers, to conduct or have conducted

necessary activities and make required arrangement either for conducting referendum under

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Article 157 or for holding election of the fresh Constituent Assembly or any other

arrangements as provided in the constitution.

Therefore, as per the above verdict, the CA must draft and promulgate Constitution in Nepal by

May, 2012.

The case under discussion is in relation to extension of term of CA by three months from

September, 2011 to December, 2011. The SC had no other option but to approve such

amendment (The Judgement is delivered on 25th November, 2011) with lots of displeasure and in

its verdict, SC makes it clear that another maximum six months extension can be given (after

December, 2011) which effectively means the CA must perform by May, 2012. Or, it shall

perish!

Thereafter, 11th Amendment of the Constitution has been passed in November, 2011 to extend

the term of CA by another six months from December, 2011 to May, 2012. As per the above

verdict, this six months time period is a last opportunity for CA to fulfill what it had promised

four 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. 8th Amendment of ICN – extended term of CA from 2010 June to 2011, June (1 year)

B. 9th 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 (3

months)

D. 11th Amendment of ICN – extended term of CA from 2010 December to 2012, May (final 6

months!)

After the above verdict, the Office of PM and Chairman of CA cum Legislature Parliament

wanted SC to review its verdict. Initially, SC refused to register a review application/petition on

the matter. Against this rejection to register a review application, when another application was

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preferred, SC, a bench of Single Judge, (J. Kamal Narayan Das) rejected the application and held

that refusal to register a review application is proper and legal13. Therefore, it can be well said

that 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 promulgate

constitution is unchanged and stands to be end of May, 2012. The Activists Advocates deserve a

pat on their back for making Courts, finally aware on the ill-effects brought by doctrine of

necessity and hopefully, the last verdict would be the graveyard for this unmeritorious (il) legal

principles in Nepalese Legal and Constitutional History.

If political parties have even a trace of honesty and seriousness, it will be a defining moment in

Nepalese History – another less than two months. Barring personally me, Nepalese people have

still some hope that we will be getting a New Constitution in Nepal if political parties show

genuine interest in performing their duties. If not, we are left with no options except to expect

some heavenly intervention. This is how Nepalese Political system is marching backwards! In

the recent past.

Regarding Constitutional Law Development, most of the time, the reasoning of the courts

revolves around aspiration and their own desires to see new Constitution. There are not enough

precedents cited in judgement to back their writings. The Learned Justices put down a

continuous circle of arguments – what CA is expected to do on the hope that the CA understands

its responsibility. But, finally, SC realised that the drama of ‘necessity’ and ‘compulsion’ would

not be a strong fortress forever for CA to hide its incompetency. Thereafter, the deadline was

inserted 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 http://www.thehimalayantimes.com/fullNews.php?headline=SC+deals+death+blow+to+executive%E2%80%9A+legislature+&NewsID=325893

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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 rajib.dahal@gmail.com

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Against the doctrine of Necessity, I had earlier written a small Article in telegraphnepal.com

which you can read from the link below:

http://www.telegraphnepal.com/views/2011-09-21/nepal:-unnecessary-doctrine-of-necessity.html