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Emergency Provisions in Nepal's Constitution

Reproduced below is the provision in Nepal's Constitution which enables the Government to declare a State of Emergency. The government resorted to this measure on November 26, after the Maoist insurgents, launched a series of attacks accross the country on November 23. These effectively brought to an end, the cease-fire being observed by them and the government since July 23, 2001.

Constitutional provision for Emergency

(Part 18 and Clause 115 of the Constitution of the Kingdom of Nepal, 1990)

Emergency Power:

If a grave emergency arises in regard to the sovereignty or integrity of the Kingdom of Nepal or the security of any part thereof, whether by war, external aggression, armed rebellion, or extreme economic disarray, His Majesty may, by Proclamation, declare or order a State of Emergency in respect of the whole of the Kingdom or of any specified part thereof.

Every Proclamation or order issued under clause (1) above shall be laid before a meeting of the House of Representatives for approval within three months from the date of issuance.

If a Proclamation or order laid for approval pursuant to clause (2) is approved by a two-thirds majority of the House of Representatives present at the meeting, such Proclamation or Order shall continue in force for a period of six months from the date of issuance.

If a Proclamation or Order laid before a meeting of the House of Representatives pursuant to clause (2) is not approved pursuant to Clause (3), such Proclamation or Order shall be deemed ipso facto to cease to operate.

Before the expiration of the period referred to in Clause (3), if a meeting of the House of Representatives, by a majority of two-thirds of the members present, passes a resolution to the effect that circumstances referred to in Clause (1) of the Proclamation or Order of the State of Emergency for one other period, not exceeding six months as specified in such resolution, and the Speaker shall inform His Majesty of such extension.

During a dissolution of the House of Representatives, the National Assembly shall exercise the powers of the House of Representatives for the purpose of Clauses (2), (3), (4) and (5) above.

After the State of Emergency has been declared pursuant to Clause (1), His Majesty may issue such orders as are necessary to meet the exigencies. Orders so issued shall be operative with the same force and effect as law so long as the State of Emergency is sin operation.

His Majesty may, at the time of making a proclamation or Order of a State of Emergency pursuant to Clause (1), suspend sub-clauses (a), (b), (d) and (e) of Clause (2) of Article 12, Clause (1) of Article 13 and Article 15, 16, 17, 22 and 23 of this Constitution for as long as the Proclamation is in operation.

Provided that the right to the remedy of habeas corpus under Article 23 shall not be suspended.

In circumstances where His Majesty has suspended any Article of this Constitution pursuant to Clause (8), no petition may lie, nor question be raised in any court for the enforcement of the fundamental rights conferred by such Article.

If, during the continuance of a Proclamation or Order under Clause (1), any damage is inflicted upon any person by an act of any official which was done in contravention of law or in bad faith, the affected person may, within three months from the date of termination of the Proclamation or order, file a petition for compensation for the said damage and if the court finds the claim valid, it shall cause compensation to be delivered.

A Proclamation or Order of a State of Emergency issued pursuant to Clause (1) may be revoked by His Majesty at any time during its continuance.

(Explanatory Note-SATP: The Articles mentioned in Clause 8 of Article 115 —Emergency Power—are as follows:

Sub Clauses a, b, d, e of Article 12 refer to: Freedom of Opinion and expression, Freedom to assemble peacefully and without arms, Freedom to move throughout the Kingdom and reside in any part thereof, Freedom to practise any profession, or to carry on any occupation, industry or trade;

Clause (1) of Article 13 refers to: Press and Publication Right;

Article 15 refers to Right against Preventive Detention; Article 16 refers to Right to Information; Article 17 refers to Right to Property; Article 22 refers to Right to Privacy; and Article 23 refers to Right to Constitutional Remedy)





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