CA Extension: Moral Imperatives

<br>Pratyush Nath Upreti

July 25, 2011, 5:45 p.m. Published in Magazine Issue: Vol.: 05 No.-3 July 22-2011 (Shrawan 06,2068)<BR>

The Constituent Assembly (CA) term was extended by three months from May 28. It has two functions to fulfill: act as a legislature parliament and write the new constitution. CA members are representatives of the people with a mandate to draft a constitution. They are members of different political parties. That means political parties can have a legal right to extend the CA term, but this is morally wrong and against the mandate of the historical Jan Andolan II. So, do political parties have the right to do moral wrong?

The term “morality” can be used either descriptively to refer to a code of conduct put forward by a society or, some other group, such as a religion, or accepted by an individual for her own behavior or normatively to refer to a code of conduct that, given specified conditions, would be put forward by all rational persons. The aims of morality in its social signification are directed towards increasing social harmony by diminishing the incidence of excessive selfishness, noxious conduct towards others, internecine struggle, and other potentially disintegrative forces in societal life. There have always been controversies as to whether morals are part of law or not. Even if the morals are distinguishable, it remains true that morality is in some way an integral part of law of legal development, that morality is secreted in the interstices of the legal system and, to an extent, is inseparable from it. Law, on the other hand, demands an absolute subjection to its rules and commands, whether a particular individual approves of them or not, and is characterized by the fact that it always applies the threat of physical compulsion. Morality, according to this view, is autonomous, while the law is heteronomous. The moral rights which are considered basic and imperative for social intercourse will be endowed in all societies with an obligatory character of great strength. This strengthening of their binding force is accomplished by converting them into rules of law. The prohibition of murder, rape, robbery and physical assaults, the ordering of relations between the sexes, the interdiction of fraud and bad faith in the conclusion and performance of consensual agreements are examples of such transformations of moral ideas into legal prescriptions. Thus the law requires external compliance with existing rule and regulations, regardless of the underlying motive, while morality appeals to the conscience of man. Apart from differences in the languages of law and morals, attempts have long been made to detect distinctions of substances between these two closely related spheres. Thus, even the natural lawyers have recognized that the two do not altogether coincide, and that there is a field of positive law not deducible from any pre-existing or presupposed system of natural law and, therefore, morally neutral.

I don’t want to go into the debate on whether morals are part of law or not, rather now I will try to justify the right to do wrong. There is no mystery, after all, in having a legal right to do something morally wrong. The potential for a legal right to do a moral wrong arises from the fact that the domains of legal and moral reasons are not perfectly aligned. One has a legal privilege to edge in front of the tired mother in the check-out line, but this is something that one has a moral duty not to do. Similarly, one could have a moral right to do what one has no customary right to do, and so on. Each domain of reasons is distinct. However conclusive are the reasons that any particular rights-assertion implies, these are only reasons within a single domain of reasons (moral, or legal, or customary). Legal rights are, clearly, rights which exist under the rules of legal systems.

By analyzing the theories given by philosophers, the right to do wrong can be justified. The reasons that rights provide are particularly powerful or weighty reasons, which override reasons of other sorts. Dworkin's metaphor is of rights as "trumps" (Dworkin 1984). Rights give reasons to treat their holders in certain ways or permit them to act in certain ways, even if some social aim would be served by doing otherwise. Dworkin says if a person has a legal right, then the legal right which he has can supersede non right consideration. Thus, it means if you have legal right then you can do moral wrong as legal right which one has supersedes all other non right consideration. In Muluki Ain (General Code), 2020 there is a chapter on Homicide and rape in criminal case, where if you kill a person, then also, you can be easily justified under law taking a plea of right of private defence. So, killing a person is considered as morally wrong but under chapter of Homicide and rape you can get immunity, so this proves that you can do moral wrong as long as you have a legal right to do an act. Supreme Court on 21st December, 2007, made an historic decision ordering the Government of Nepal to recognize third gender according to their gender identity and protect sexual and gender minority rights as natural persons. Thus legalizing unnatural offence, as Homosexuality is considered immoral, so at present a person has legal right to do unnatural offence, but morally it is wrong.

Another issue, Euthanasia which is the intentional premature termination of another person's life either by direct intervention or by withholding life-prolonging measures and resources, either at the express or implied request of that person, or in the absence of such approval. Involuntary euthanasia where the individual wishes to go on living is a euphemism for murder. Many countries like the Netherlands, Sweden, and Finland have euthanasia, that means people there can kill themselves/another which is morally wrong but still have legal power to do wrong.

Recently the Constituent Assembly (CA) term has been extended by another three months. Article 64 of the Interim Constitutional of Nepal, 2063 says that the term of the CA can be extended up to six months by a resolution of the Constituent Assembly, if its tasks are not completed in due time, due to proclamation of state of emergency in the country. The parliament has changed the phrase ‘the term of CA will be three years from the date of its first meeting’ mentioned in Article 64 of the interim constitution to ‘the term of CA will be three years and three months from the date of its first meeting.’

Parliament has a Legal power to amend the Constitution; hence the extension has been brought through Amendment of the Constitution. In Nepal, Constituent Assembly has two functions; act as the legislature-parliament and write the new constitution. CA members are representatives of the people with a mandate to draft the constitution. They are members of different political parties. That means political parties have a legal right to extend the CA term.

We are aware of the fact that, at the time of CA election, a lot of promises were made by political parties. It has been three years since but they have been fooling people and with a legal right which they possess they extended the term by three months to fool the people.  Though the extension of Constitution Assembly is correct in the eye of law, what about the moral and ethical value of political parties? Are political parties in Nepal immoral?  In terms of law, political parties have extended CA term for three months which is morally wrong and against the mandate of historical Jan Andolan II. So can political parties have the right to do moral wrong? The parliament amended the constitution, CA members (Political Parties) did the moral wrong.

In the legal field, we do not ask: is it moral? Rather, we ask: is it legal? There are domains of morality which stand outside the jurisdiction boundaries of the law. There are branches of law which are largely unaffected by moral valuations. But there exists a substantial body of legal norms whose purpose it is to guarantee and reinforce the observance of moral imperatives which are deemed essential.

BSc.LL.B (Hons)(Undergraduate law student)


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