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Constitutional Provision

Constitutional Provision. Security Forces. Use of Security Forces. SFs are used against both external and internal threat to the ‘national interests’. Against ‘war’ and during ‘Aid to civil power’.

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Constitutional Provision

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  1. Constitutional Provision Security Forces

  2. Use of Security Forces • SFs are used against both external and internal threat to the ‘national interests’. Against ‘war’ and during ‘Aid to civil power’. • A clear cut legal procedures are made for the use of ‘Military’ against the external interventions and own populations during emergency. • A clear cut legal provisions are made for the use of ‘Military’ during its engagements against ‘terrorism’. • Democracy ensures ‘freedom and liberty’ of population where as ‘Security’ demands curtailment of it. Judicious use of Military is what is required; how do you enshrine this in the constitution? • There is a need of clear legal procedure enshrined in the constitution (main law of the land) where as everything can not be written there but a clear guideline must be made. Challenge is to find the correct wording that meets the political and judicial requirement.

  3. Constitutional Provisions • Constitution may provide rights to the parliament to declare ‘war’ or peace. • Sounds hypothetical; some war starts without warning. It may take long time before decisions are made. • Constitution may require the executive branch to receive express authorization from parliament before engaging in any act of war or making peace. • This allows the parliament to debate the question prior to engaging in any act of war or military intervention abroad. • Constitution may provide for parliament to be notified of the decision of the executive on ‘war’ or peace. • This means no prior notification is required from the parliament to the executive to make decisions.

  4. Constitutional Provisions on Emergency • A state of emergency can be declared on a number of situations – armed rebellion threatening the constitution, epidemic, natural disaster or economic crisis. • The constitution and law must prevent the executive from declaring a state of emergency for the party’s political motives. • The constitution and law must stipulate that military coups are constitutionally invalid. • All legal system makes provision to coup up with emergency situation. However, any derogation and suspension of rights which is necessary to coup up with the crisis situation must be temporary. Principles: -Legality: Internal law must confirm international law. -Proclamation: Emergency must be announced publically. -Communication: Inform other parties to the treaty and the UN at the state of HR during emergency. -Temporality: It must be specified and short time. -Proportionality: Use of force must not be more than it is required. -Exceptional Threat: It should be an imminent danger to the community.

  5. US constitution & Military Section-2, Clause 1: Command of military; • The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices. .. .. • The President is the military's commander-in-chief; however Article One gives Congress and not the President the authority to declare war . Presidents have often deployed troops with Congressional authorization, but without an explicit declaration of war. Section-3, Clause 5: Officers' Commission • The President commissions "all the Officers of the United States." These include officers in both military and foreign service.

  6. US Constitution and the Military Section-2, Clause 2: Advice and Consent Clause • The President exercises the powers in the Advice and Consent Clause with the advice and consent of the Senate. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; • The president shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors. • President shall nominate public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States:. The President may enter the United States into treaties, but they are not effective until ratified by a two-thirds vote in the Senate (upper house). The Americans, immediately after independence, formed a lose federation and the Federal government controlled the ‘National Army’. New states wanted raise militia and keep fire arms with the people against the Army if it went out of constitutional provision.

  7. Interim Constitution of Nepal and the Military Preamble We, the people of Nepal, • Preservation of an Independent, sovereign, unified and territorially secured Nepal. What are the threats? What means do we have? • Preservation of sovereign rights of the people, democratic system, democratic rights and values. Human rights, equality and freedom. Threats? And means available? What about the duties of citizen? • Maintain domestic law, order and peace: rule of law to protect the people of Nepal, their lives and property. What are the threats? What means do we have?

  8. Constitutional….. • Part-19, Emergency: State of Emergency can be declared by the council of minister when war, invasion, armed rebellion or extreme economic disarray. It must be approved by the parliament by two third of majority within 1 month and it can not last for more than 3 months . • Part-20, About the Army: -The C in C is appointed by the council of ministers and the council of minister manages the Army. Appoint by Pres on recommendation of the CoM. -The CoM will control, mobilize and manage the Army in accordance with the law. -The CoM must prepare and carry out a plan of democratization that is consented by the political parties and consult relevant cttee of the legislative parliament. This plan must include training on democracy and HR. -The CoM will decide the number, democratic structure and inclusiveness in charecter. -There shall be a National Security Council which will make the recommendations to the Council of Minister about the Army and it will have 6 ministers- PM, Def , Home and other three ministers. -Council of Minister will constitute ‘Special Cttee’ to deal with the integration and rehabilitation of the Maoist Army Combatants.

  9. Conclusion • Everything can not be written in the constitution. • Once it is written in the constitution it can not be easily changed. • Subjects that needs to be included in the Constitution must be written. • Constitution must provide enough rooms to make laws / Acts / rules and regulations. • The main reason why it should be written in the constitution is to guarantee the separation and spelling of power. • Other reasons- avoid politicization of SF, coup proof, democratic control, increase efficiency to enable the SF to carry out their mandate. • Although the Army will be the powerful institution, still it must remain under the control of elected representatives and function according to the law.

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