Court Vs Constituent Assembly

  7 min 16 sec to read

This tussle between the judiciary and the legislative bodies has spread to other crucial institutions of the state as well, polarizing opinion down the political corridors and Nepali society as a whole. 
--By Akhilesh Tripathi 
In another twist in the recent political developments, the Supreme Court (SC) and the Constituent Assembly (CA) are at loggerheads over the constitution drafting process. Issuing an interim order on June 19, the SC halted the implementation of the much-touted four-party 16-point agreement, which many said had paved the way for writing the new constitution.
According to the apex court, the 16-point deal, which many commentators said became possible mainly because of the earthquake, is against the provisions of the Interim Constitution and hence the constitution writing process which is based on this deal should be stopped immediately.
On their part, the four major parties in the CA – Nepali Congress, CPN-UML, UCPN (Maoist) and Madhesi Janadhikar Forum Loktantrik – the champions of the deal, have ignored the SC’s order and asserted that the constitution drafting process will continue. They have even charged the SC of crossing the line and interfering in the business of the sovereign CA. Smaller parties, especially the Madhes-based parties, have, however, welcomed the SC decision. Some top leaders of the ruling parties such as Nepali Congress Vice-president Ram Chandra Poudel and senior UML leader Madhav Kumar Nepal had objected to the deal at the very beginning, saying that the country cannot sustain eight provinces. 
This tussle between the judiciary and the legislative bodies has spread to other crucial institutions of the state as well, polarizing opinion down the political corridors and Nepali society as a whole. On June 22, President Dr Ram Baran Yadav in his meeting with CA Chairman Subash Chandra Nemwang apparently expressed his dissatisfaction over the decision of the parties as well as the CA to ignore the SC verdict. Dr Yadav urged the CA to show restraint. Nemwang, in turn, replied that he should tell that to the court. 
A day after the heated exchange between the head of state and the CA Chair, UML Chairman KP Oli, who returned from a weeklong health check-up from Bangkok, not only reminded the President of his ceremonial status but also urged him to stay away from politics. As things stand, the CA is going ahead with its decision to draft a new constitution which, according to the court, will be unconstitutional! 
The SC’s order to block the drafting of the new constitution mainly hinges on three Articles of the Interim Constitution – Articles 1, 82 and 138. The court has ordered that the 16-point deal violates these articles. These articles are as follows:     
Article 1
Constitution as the Fundamental Law: (1) This Constitution is the fundamental law of Nepal. Any laws inconsistent with it shall, to the extent of such inconsistency, be void.
Article 82
Dissolution of Constituent Assembly: The business of the Constituent Assembly shall end on the day of the commencement of the constitution passed by the Constituent Assembly.
Provided that, until the election to the legislature-parliament as set forth in the constitution passed by the Constituent Assembly is held, the business and proceedings of the legislature-parliament shall be as set forth in the constitution passed by that Assembly.
Article 138 (1a)
Recognizing the desire of the indigenous peoples and of the people of backward and other areas including Madhesi people towards autonomous provinces, Nepal shall be a federal democratic republican state. Provinces shall be autonomous and vested with full authority. The boundaries, number, names and structures, as well as full details of the lists, of autonomous provinces and the center and allocation of means, resources and powers shall be determined by the Constituent Assembly, while maintaining the sovereignty, unity and integrity of Nepal.
The CA, where the four major parties have more than 90 percent seats, has already embraced the 16-point deal. So, it’s no longer just a four-party agenda. ‘Can the Supreme Court interfere in the CA’s business?’ is the question that the supporters of the 16-point deal are asking. The supporters of the SC order, on the other hand, have a question too: Can the CA, even if it is a sovereign body, go against the provisions of the Interim Constitution, the prevailing supreme law of the nation?
In any case, four major parties, not the CA, have decided to federate the country into eight federal provinces. The boundaries of these federal states to be formed, as per the 16-point deal, will be decided by a federal commission comprising of experts. Similarly, the names of the states will be decided by the respective state parliaments. These provisions of the deal are in clear contradiction with Article 138 of the Interim Constitution which assigns these responsibilities to no other body than the CA.   
According to some analysts, the 16-point deal tried to find out a way around the most contentious issue of the new constitution – federalism. Federalism has been the bottleneck which has been blocking the constitution writing process right from the beginning. The first CA died without delivering the new constitution because the parties in the constitution drafting body could not agree on a common model of federalism, number of states and the demarcation of their boundaries. This tussle continued in the second CA. As a result, it could not deliver the new constitution within a year of its election as promised by the politicians.
So, it seems, they somehow agreed on the number of states to be formed – eight – but the difference in opinion on the names and boundaries of such states could not be resolved. Therefore these issues were left for a future federal commission and state parliaments to decide, the signatories of the 16-point deal have claimed.  However, according to the deal, the final decision on the demarcation of the states will be taken by a two-thirds majority of the Legislature-Parliament (the deal says the CA will be transformed into a parliament after passing the new constitution.) 
One thing is clear - the Interim Constitution does not envision a commission or any other institution to delineate the boundaries of the states to be formed in Federal Nepal. Nor does it sanction the names of the states to be decided by the state parliaments, or any other body for that matter. According to the Interim Constitution, all these tasks have to be completed by the CA itself. However, can the CA transfer these responsibilities to other bodies? The Interim Constitution doesn’t say anything about it.
We all know that the CA, which also works as the parliament, can amend the constitution with a two-thirds majority. But can it go against the existing constitutional provisions? No, it can’t.
Through its decision, the apex court has reminded the CA, the government, the four major parties and everyone else of this fact. And the CA, the government, the parties and everyone else should respect the court order if they believe in the rule of law, independent judiciary and the philosophy behind constitutionalism. The government can file an appeal with the SC to review its interim order. But to say that “we don’t care what the court says” is an example of utter irresponsibility. It will set a wrong precedent. If institutions like the political parties, the government and the CA don’t respect the rule of law, why should anybody else be expected to do the same?
This is a question that everyone should try to answer, seriously. 
After all, we need a working constitution, not a hurriedly prepared incomplete document that would serve no other purpose than to oust Sushil Koirala from the PM’s Office.   

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