Know Your [Suspended] Rights!

At present, none of the political parties are talking about extending the tenure of the CA, pursuant of Article 148, which they ought to be doing, before they start talking about any other issue. The average citizen--como moi--should be worried about this. Because, the language in the IC seems to imply that a State of Emergency means the expiration of the CA, and that the expiratoion of the CA mandates a State of Emergency. In my opinion, the political parties were either short-sighted when they wrote these clauses--not very likely at all; or, they were calculative and in consensus when they afreed to keep the fate of the CA vague.

It might have been a populist measure--to admit at the onset, even before the IC was written, that the CA might fail its mandate must have seemed too risky, inviting ready trouble from the most voluble group at that point: The People!

But, what happens when, in less than three weeks, a State of Emergency is imposed? This is a foregone conclusion by now: the constitutional crisis my last just a few minutes, symbolically, or it might last much longer, but it is a near certainty that it will happen.

Article 143(7) directly addresses the fundamental rights of the people, as they might be suspended under a State of Emergency, or as they may never be infringed upo, even in a State of Emergency. It is a long, clumsy article that goes:

Article 143(7) During the time of the Proclamation or Order of State of Emergency made *by the Presint on reh recommendation of the Council of Ministers* pursuant to clause 143(1), the fundamental rights provided in Part 3 [Articles 12 to 32] may be suspended as long as the Proclamation or Order is in operation.

Provided that clauses (1), (2) of Article 12 and sub-clauses (c) and (d) of clause (3), Articles 13 and 14, clause (2) and (3) of Article 15, Articles 16, 17, 18, 20, 21, 22, 23, 24, 26, 29, 30 and 31 and the right to constitutional remedy related to Article 32 and the right to Haebeas Corpus shall not be suspended.

So, the list, simplified:

These rights will remain.

Article 12(1)(2)(3.c.d) || Article 13 || Article 14 || Article15(2)(3) || Article 16 || Article 17 || Article 18 || Article 20 || Article 21 || Article 22 || Article 23 || Article 24 || Article 26 || Article 29 || Article 30 || Article 31 || Article 32 [Constitutional Remedy and Haebus Corpus ]

These fundamental rights will disappear:

Article 12(3.d.e.f)

--Freedom to form unions and associations

--Freedom to move and reside in part of Nepal, and

--Freedom to engage in any occupation or be engaged in employment, industry or trade

*There is no provision in Article 143(7) which addresses the part after *however* that comes after the above mentioned rights. These 5 conditionals are ripe to interpretation.

Article 15(1), another right tossed out of the window, reads thus:

"Article 15(1) There shall be no prior censorship [or enforced cessation]* of publication and broadcasting or printing of any news item, editorial, article or feature or other reading or audio-visual material by any means including electronic publication, broadcasting and the press.

"Provided that nothing shall be deemed to prevent making of laws to impose reasonable restrictions on any act which may undermine the sovereignty or integrity of Nepal, or which may jeopardise the harmonious relations subsisting [existing?]* among the peoples of various castes, tribes or communities; or on any act of sedition, defamation, contempt of court or incitement to criminal offence; or on any act which may be contrary to decent public behaviour or morality."

Article 15(4), another right deniable in a State of Emergency:

Article 15(4) No means of communication including the press, electronic broadcasting and telephone shall be obstructed except in accordance with law.

In a State of Emergency, citizens will not have the right to property

Article 19: Right to Property

Article 19(1) Every citizen shall, subject to existing laws, have the right too acquire, own, sell and otherwise dispose of property.

Article 19(2) The state shall not, except in public interest, acquire, or create any encumbrance on the property of any person.

Provided that this clause shall not be applicable to property acquired through illegal means.

Article 19(3) Compensation shall be provided for any property requisitioned, acquired or encumbered by the State in implementing scientific land reform programmes or in the public interest in accordance with the law. The amuont and basis of compensation, and relevant procedure shall be as prescribed by law.

*Do you see how it would be very profitable to be the party with the Council of Ministers when the State of Emergency applies? Comprehensive land reform is political gold. If you could implement it by suspending this right, your party would be God for the next few generations. I hope at least one of the parties out there shows hte galls to take this route.

Article 25 may be suspended in a State of Emergency.

Article 25: Right Against Preventive Detention

Article 25(1) No person shall be held under preventive detention unless there is sufficient ground to believe in the existince of an immediate threat to the sovereignty nad integrity of, or the law and order situation in, Nepal.

Article 25(2) If an authority detains a person under preventive detention contrary to law or in bad faith, the person is entitled to compensation under law.

Articles 27 and 28 may be suspended under a State of Emergency.

Article 27(1) Every citizen shall have the right to demand or obtain information on any matters of concern to himself or herself or to the public.

Provided that nothing in this Article shall be deemed to compel any person to provide information on any matter about which confidentiality is to be maintained according to law.

Article 28: Right to Privacy

Article 28 Except in circumstance provided by law, privacy in relation to the person, and to their residences, property, documents, records, statistics and correspondence, and their reputation are inviolable.