RECENT POLITICAL TURMOIL IN ASIA has been marked by larger legal uncertainty. Images of violence, protests, and arson have evoked a sense of awe, amazement, and panic.
Upheavals in South Asia, first in Bangladesh and then in Nepal must be critically understood from a legal philosophy perspective, as they have combined the restlessness of the people with constitutional uncertainties. South Korea nearly had a Schmittian moment, and the ousting of governments in Bangladesh and Nepal has opened theoretical debates on how popular sovereignty, revolution, and constitutions engage with each other. These times demand an interaction between legality and legitimacy.
However, this is not the first time a subcontinental nation has faced a constitutional conundrum due to a revolution or coup d’état. Pakistan has gone through a significant constitutional turmoil due to coup d’états, and the Pakistani Supreme Court has dealt with the question of revolution and constitutional change several times in its postcolonial history. Understanding the Nepalese situation, along with Pakistani lessons on dealing with coup d’état situations can hold valuable lessons for students of constitutional law and legal philosophy.
Kelsen in Pakistan: An unusual ‘Ally’ of the military dictatorship
History presents its ironies in mysterious ways. Austrian scholar Hans Kelsen was persecuted by the Nazis and their totalitarian political system. However, his thesis was used to justify the coup d’état in Pakistan. The deployment of Kelsen’s views on revolution and Grundnorm by the Pakistani Supreme Court has been a matter of scholarly debate in Jurisprudence classes across the subcontinent.
Kelsen proposed that the entire legal system gets its validity from the basic norm (Grundnorm). However, he opines that a change in the grundnorm can be effected through a successful revolution or coup d’état, as a revolution may nullify the old order and bring a new one into being through an illegitimate means that is not prescribed by the first order itself. The nature of the revolution - violent or non-violent - would also not matter. In State v. Dasso (1958), the Pakistani Supreme Court validated the unilateral declaration by President Mirza to abrogate the Constitution of Pakistan (1956 ). In doing so, the majority view, led by Justice Muhammad Munir, deployed Kelsen’s thesis on Revolution and grundnorm, suggesting that a revolution or coup d’état is a recognized method of changing a constitution if it is efficacious.
Upheavals in South Asia, first in Bangladesh and then in Nepal must be critically understood from a legal philosophy perspective, as they have combined the restlessness of the people with constitutional uncertainties.
An efficacious revolution is a law-creating fact. However, after fifteen years, in Asma Jilani v. State of Punjab (1972), the Pakistani Supreme Court did a course correction and asserted that Kelsen’s thesis on grundnorm and revolution can not be used to usurp power. Justice Yaqub Ali, in this case, made a pertinent point regarding the error in Dasso on the question of efficacy and validity of a legal system, as he opined:
“So after a change is brought about by a revolution or coup d’état the State must have a constitution and subject itself to that order. Every single norm of the new legal order will be valid not because the order is efficacious, but because it is made in the manner provided by the Constitution of the State. Kelsen, therefore, does not contemplate an omnipresent President and Chief Martial Law Administrator sitting high above society and handing his behests downwards.”
We believe that this position of Justice Yaqub is in tandem with Kelsen’s approach to the question of the linkage between the validity and efficacy of the legal system. For Kelsen, efficacy was a conditio sine qua non but not a conditio per quam. This means that the efficacy of the legal system is a necessary condition, but it is not the reason for its validity.
The specter of revolution and Nepal
Karl Marx once famously wrote: ‘A specter is haunting Europe - the specter of communism.’ For us, for our present purpose, we can rephrase it as ‘A specter is haunting South Asia - that of Gen Z revolution.’ We attempt to deconstruct the legality of Nepal’s interim government and the relationship between revolutions and constitutions through Hans Kelsen’s views on revolution.
Unlike the Constitution of India, the Nepalese Constitution explicitly claims sovereignty in the name of the people. Can the ousting of the government and the installation of the interim government in the Nepalese polity be instances of a revolution?
For Kelsen, revolution is complete if the Grundnorm of a polity has been completely obliterated. Grundnorm is a legal presupposition that is responsible for the validity and existence of an entire legal system or polity. In other words, a current legal system exists because a validating structure is in place. It is the first instance that is responsible for creating the polity and constitutional moment of a particular country in the first place.
In the Indian context, this moment was captured when the Constituent Assembly drafted and enacted the Constitution. In Nepal, this situation is reflected in its 2015 Constitution, which replaced the monarchical system with democratic and secular principles. Since the Constitution remains in force, it would be incorrect to say that Nepal has undergone a revolution in a factual sense. Article 1 of the Constitution of Nepal is its supremacy clause, and it remains the supreme cognitive-validating structure.
Since Kelsen’s theory relies on the hierarchical validity of legal norms, it is safe to state that the appointment of the interim Prime Minister Sushila Karki lacks validity in the constitutional scheme. This ‘unconstitutional but legitimate’ positioning of the interim Prime Minister can be assessed from the perspective of another Austrian legal cognitive tool, Fehlerkalkul.
The concept was coined by Kelsen’s colleague Adolf Julius Merkl. Within a perfect, hierarchy, driven legal structure, a norm derives its validity from a higher norm and that higher norm derives its validity from another higher norm. To avoid the problem of infinite regress, Kelsen employed the method of foundationalism and devised the Grundnorm, a presupposition that would validate the entire legal structure.
Since Kelsen’s theory relies on the hierarchical validity of legal norms, it is safe to state that the appointment of the interim Prime Minister Sushila Karki lacks validity in the constitutional scheme.
In a strict logical sense, any norm that is not in conformity with a higher norm is automatically invalid. But in reality, one encounters laws that are not in conformity with the higher norms. Merkl suggested that an automatic rejection of such norms would create uncertain situations, for there would be more laws not to be followed. For these uncertain situations, the Fehlerkalkul device is used.
It takes into account the defeasible nature of law and instead of outrightly rejecting the norm as invalid, treats it as valid till it is declared a bad law by the Courts. Here, the law lowers its ‘perfect sense’ of hierarchical ordering and provides an ad hoc validity to an otherwise illegal criterion. It is in the context of Fehlerkalkul that one can interpret Prime Minister Karki’s appointment. Although the appointment is not valid as it violates Articles 74, 76, and 132(2) of Nepal’s 2015 Constitution, the situation will be given temporary validity unless declared ultra vires by the Courts.
Thus, we find that in a strict Kelsenian sense, the ‘Gen Z’ revolution would not fit into the definition of revolution as the constitution itself has not ceased to exist. However, the appointment of Sushila Karki as the Prime Minister is violative of certain provisions of the Nepalese constitution. In this quasi-revolutionary situation, Fehlerkalkul offers a more effective methodological framework for maintaining constitutional stability in Nepal.
Postscript
We do not have a concluding remark. However, we have one final observation regarding anxieties about using “foreign theories” as suggested by the Pakistani Supreme Court in a 2015 case. The judges in this case castigated Kelsen’s Pure Theory of Law. They valorized and supported the position in Asma Jilani and asserted that “in the presence of Objectives Resolution there was no need to look for foreign guidance as to the norms to be applied.”
They also suggested that “a half-baked academic and jurisprudential theory” of academic Dietrich Conrad - popularly known as the ‘basic structure doctrine’ - is attempting to make inroads in Pakistan. As teachers of jurisprudence, we find this position extremely constricted and constrained.
In India, the 42nd Amendment Act 1976, which attempted to alter the oeuvre of the Indian Constitution in fundamental ways, was brought in the name of “achieving the objective of socio-economic revolution” and to spell out the high ideals of socialism, secularism, and integrity of the nation, and for implementing the directive principles. Hence, it is essential to note that a return to conservative nationalist methodologies, theories, or Objectives Resolution may not necessarily be a panacea.
Kelsen’s thesis was not responsible for coups in Pakistan. Its misappropriation was. Reading the Nepalese situation in the light of Hans Kelsen’s idea of revolution and Grundnorm, as well as Merkl’s concept of Fehlerkalkul, provides us with a better understanding of navigating legal theories in uncertain times. Curious students of constitutional law and legal philosophy in the subcontinent must read, understand, and engage with Kelsen, Merkl, and other philosophers with open minds.