Henry de Bracton was a 13th Century British jurist who, among other things, defended supreme papal authority over secular affairs and recommended that criminal trials be undertaken “by ordeal” (wherein the defendant would hold red-hot iron or be thrown bound into a lake under the premise that a just god would protect the innocent). While the interim centuries have seen the aforementioned ideas fall largely into disuse, another of Bracton’s maxims seems to be fast becoming the unconstitutional norm in the former kingdom of Nepal: the so-called “Doctrine of Necessity.”
The doctrine essentially says that state actors can—when “necessary”—undertake unconstitutional, extra-legal or otherwise invalid actions so as to restore order. In 1954, the Supreme Court of Pakistan became the first to invoke this device as a common law justification for the dissolution of parliament by the executive. Twenty-five years later, the same court again cited the doctrine to justify the extra-legal execution of former Prime Minister Zulfikar Ali Bhutto by General Zia. Its use has since spread beyond the subcontinent however. In the 1980s Grenada used it to set up a criminal court and imprison political enemies before a new constitution could be set in place, and over the last three years both Fiji and Nigeria have turned to Bracton as a means for empowering a new executive following the unconstitutional overthrow of a predecessor.
Nepal’s use of the doctrine of necessity has been highly original as might be expected from the only modern state with a non-rectangular flag. 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.