(Statement of former Chief Justice Biswa Nath Upadhaya and other prominent people).
It has already been a month since an emergency was imposed in the country under Article 115, Clause 1 of the constitution. The Maoists withdrew from the peace process and started a bloodbath, and three decisions were taken by government-it imposed an emergency, mobilised the army, and issued the Terrorism and Disruptive Activities (Prevention and Control) ordinance.
Besides suspending the fundamental rights of the people, all the emergency has been able to do is spread chaos and terror, and create a vacuum in the minds of the people. Nothing else has come out of it. Just because an emergency is in effect, this does not mean that the government can do anything it wants. It gives absolute powers to neither the government nor to government officials. The constitution gives the people certain rights and an emergency cannot just withdraw them. Come what may, the rights of the people will always be there. They can only be suspended for a limited period of time. No action can be taken against people without the necessary laws. During an emergency, when some kinds of powers have to be limited, Article 115, Clause 7 gives the government powers to get certain orders issued. But no orders have been issued under this clause till date. Given this, it isn't surprising that people will question whether we need an emergency and what its outcome will be. The government does not seem interested in framing special orders.
The people were told that the emergency was imposed to control the Maoists and mobilise the army. However, it wasn't necessary to impose an emergency just to mobilise the army. Why did the government think it necessary? The people have no clue, and the government does not think it is important to provide answers. People ask why an all-party meeting was not called to take this decision, why it was necessary to impose an emergency simply to mobilise the army, why fundamental rights have been suspended and why the civilian government does not have control over the army. These are some questions that media has been asking. Earlier, when hundreds of people and policemen were being massacred, the government wanted to mobilise the army. The army always refused, saying that correct procedure had to be followed. Once the emergency was imposed, all procedures were completed immediately, and the army was mobilised within no time, which shows that the emergency was a pre-condition for army deployment.
Outside the Valley, the people's reading of the situation seems to be that civil administration has become weaker and is relying increasingly on the army. The police have been forced to hand over to the army all the reporters they take into custody. The army itself takes into custody people it suspects of being Maoists or Maoist sympathisers. Instead of handing these people over to the civilian administration, it takes custody of them, questions them and locks them up. It is one thing to deploy the army, but it is completely another matter for the army to enforce a military regime. The army has been mobilised to tackle the Maoists, they have to follow the orders of the government, ie, they have to follow civilian law and procedures, they cannot implement military law and order. This must be explained to the people, otherwise after the emergency has been withdrawn, there will be legal problems. We demand that the government explain all this to the people, immediately and in full detail.
At the same time that the emergency was imposed, another ordinance to control the Maoists was also put in force. Article 115, Clause 7 of the constitution clearly provides enough space for the civilian government to give orders to bring the situation under control. It was unnecessary to implement another ordinance for this. The government has not bothered to explain. This shows disrespect for the constitution, and will also trouble the people once the emergency has been withdrawn. This ordinance should be scrapped immediately and we request the government to immediately implement the provisions provided by the constitution.
There was an ordinance issued alongside the emergency declaration. Because the constitution gives government the power to issue special orders, the necessity of legislating through an ordinance is unclear. it will not only remain a noose on the necks of the people after the emergency ends but will also remain as a permanent inhuman law. That is why we call on his Majesty's Government to scrap the ordinance immediately and issue the necessary orders to fight the Maoists using the provisions in the constitution (Article 115, 7). The government is also said to be preparing to issue other ordinances. In an emergency the government should be worried about convening parliament, not framing laws through ordinances. The emergency does not suspend the rights of the MPs or parliament, and any attempt to use the emergency for anything other than fighting the insurgents will be deemed a misuse of emergency powers. The government must convene the regular winter session of parliament to ratify the emergency and to make other necessary laws.
The constitution has clearly stated that if necessary, the fundamental rights of the people can be suspended during an emergency. However, the government must have adequate reasons for taking such a step. The government is responsible for protecting the lives and property of the people, protecting national wealth, taking action against unlawful activities and providing good governance. These can be done by using its powers and the security forces, but it is not necessary to suspend the fundamental rights of the people. It is not right to restrict information flow, even during an emergency. ... We request the government to not do anything that will weaken or harm democracy, the political system, or the people, and do everything that can be done to remove fear from the minds of the people.