On the morning of April 25 the people of Nepal under the leadership of the seven party alliance, were all set to march to the Narayan Hiti Palace.
Armed repression against the public protests which had assumed the proportions of a civil war, with the people on one side and the king with his armed forces on the other, proved incapable of stopping the popular yearning for a democratic republic.
Home ministry officials and staff, police units and most notably the wives of the soldiers of the Royal Nepal Army joined the people in protest. All these were clear indicators of the fact that the king has lost effective control of State power and the monarchy had lost all legal legitimacy.
In international law, the situation was ripe for the recognition of an incipient new legal regime.
The writing on the wall was clear, the monarch could read it only at midnight and seems ready for a constitutional transfer of power to the people's representatives.
The question however, remains, does the king have the power to reconvene a dissolved parliament and what would be its legitimacy in international and Nepalese law? We have no answers to these questions as yet. The state of the monarch recalling the dissolved parliament gives no indication of the legitimacy of his actions not does it give any guidance to ensure that any incoming regime acquires power through legitimate means.
It is, however, clear that Nepal is all set to witness a transfer to power in the nature of a revolution.
Questions of constitutionality of regimes and their legitimacy accompany such tumultuous events. Such changes need to be in conformity with the requirements of international law. For this to happen, there has to be a demonstrable adherence to the ideal of rule of law in the interest of an orderly society, with the continuity of legal acts being maintained and recognised by the international community.
The constitution of Nepal has no express provision which confers the power on the king to reinstate the dissolved parliament. The only powers that the king has are under Article 27(3) and Article 127 of the constitution of Nepal. Article 27(3) ordains the king to 'to preserve and protect this constitution by keeping in view the best interests and welfare of the people of Nepal.' Article 127 allows the king to issue 'necessary order' to remove 'any difficulty' in connection with the implementation of the constitution. These were the very same articles under which the king declared an emergency on Feburary 1, 2005.
Unless therefore the purpose with which these Articles are being used is spelt out, legality may be denied to understand the nature of exercise of power by the king under Article 27(3). It ought to be construed as an exercise of power to facilitate a transition of power to the incoming regime.
Although in situations of revolution, there is a break between one legal regime and another, there is also continuity in legality, represented by the basic norm determining the legitimacy of the incoming regime.
It is therefore necessary to understand the revival of parliament to be supported by the doctrine of necessity in international law, which views the reconvened parliament as only a transitional body charged with the duty to call an election for a electing a constituent assembly.
This elected constituent assembly will then draft and adopt the new constitution. These are recognised methods in international law to determine the will of the people, considered sovereign and to confer recognition of the new regime. The earlier constitution has to give way to a new constitution.
In the case of Nepal, the test of loss of effectiveness of the monarchy stands established. The test of effectiveness of the new regime will depend on the manner in which the transition will take place accompanied with necessary formalities.
The doctrines invoked to judge the effectiveness of new regimes is the 'will of the people' expressed in terms of their willingness to adhere to the basic norms of the new system and a commitment to the preservation of the basic norm of the legal system.
The jurisprudence and the principles recognised as determinants of the validity of the legal system or necessary for a system to qualify as a legal system seem to be satisfied in Nepal as is evident from the commitment of the people to the seven party alliance which has effective control of the territory of Nepal.
The acceptance of the rules of any legal system by the people is another primary factor determining the validity of the regime. Eminent jurist H L A Hart stressed the importance of the observance of the rules of the legal system by the official supposed to enforce the rules of the system as important. This adherence will be demonstrated at the time of the drafting of the new constitution on democratic and socialist lines as is being demanded by the people.
It seems the way forward in Nepal seems to be to treat the reconvened parliament as an interim transitory government charges with the mandate of calling into being a constituent assembly, through elections based on adult franchise. This will fulfill the requirement of the basic norm.
The midnight proclamation gives formal recognition of the passing over of effective control over the nation, of course when there was no other option left for the king.
The old system has lost legitimacy and its standards are of no use to judge the legitimacy or validity of the first few steps in the life of the new regime.
The interim arrangement is an expression of the popular will of the people, it effectively controls the nation, marks the observance of the basic norm or rule of law by whatever name we call it, democracy, socialism, will of the people or the original mandate of the sovereign people.
The legitimacy of the interim arrangement aimed at ushering the nation into a new era is beyond doubt. The interim government would also be bound by Article 6 of the Nepal Treaties Act, which makes international treaties ratified by Nepal automatically applicable to the country.