Nepalese Supreme Court’s Controversial Verdict on the Tenure of Constituent Assembly

| by Dirgha Raj Prasai

( December 04, Kathmandu, Sri Lanka Guardian) The verdict given by Supreme Court’s five-member bench of which included the honorable Chief Justice (CJ) Khilraj Regmi on 25 November was politically motivated against constitutional values.
Supreme Court, Nepal
The bench has stipulated Constituent Assembly (CA) tenure, decided on referendum issue and asked the parties to hold another CA election or seek alternative path. The duty of the court is restricted to suggest whether the term can be extended or not. We advocate for a firm legal state. We have believed that SC protects citizens’ right.
But the controversial decision has rendered all sectors chaotic. This verdict has also tarnished the trust invested on such an honored institution as the Supreme Court (SC). Where would we go to seek justice if such honored institution as the Supreme Court and judges indulge in political gambling and calculations? We believed that the SC would not support traitors and criminals that are bent on draining state coffer by extending the CA term- unconstitutionally. We waited for a long time on 25, Nov-2011, thinking on what the court would decide. After the hearing I was depressed as to why judges gave such a verdict. Can this be called a verdict? In fact, a verdict is supposed to remove ambiguity from the writ petitioned by petitioners and the subject must remain free from legal restrictions.
I had not imagined that the judges would themselves get trapped in the conspiracy. The points that had not even been touched upon by the writ petitioners were given space in the definition of this verdict. From where have they come? The motivation of the judges to stipulate the Constituent Assembly’s (CA) term, and give orders appertaining to referendum, the election to another CA or other alternatives is not questionable? If a party raises opposition and decent at the parliament we will presume that it is guided with self-interest. It is meaningless to support and oppose-politically. If we are to judge this subject fairly we will question if the judges and the CJ had come under political pressure and self interest. Will this plunge the nation into a civil war? The CJ and the judges responsible for the verdict will have to pay throughout their life. Can they make such unscrupulous decision from such a position? They will not be purged of this tarnished image. The respected judges must be aware of this fact.
There are apparent efforts to turn this holy land into another broken Yugoslovakia and Afghanistan. It is irresponsible on part of the SC to sanction repeated elections to the CA after latter’s failure to draft a constitution in the stipulated timeframe. Such decision keeps the nation hostage to indecisiveness. Had SC clung to its stance of extending CA’s term only once it would have retained its dignified status! However, the decision taken on 25 May 2010 by a five-member bench headed by CJ Regmi is the opposite of what has been done on 25 Nov.2010.
The 64th article of the verdict given on 25 May had clearly mentioned that the CA term would not be more than 2 years and in case of emergency it could only be stretched by six months extension. Heedless to this fact the parties had already extended the two year term that ended on 28 May, 2010 by another year which ended on 28 May 2011. Later, they added three more months to the term which they had already extended by one year in violation of the constitutional regulations. Still the SC had not been stripped off its dignity. But it lost it when the five-member bench headed by CJ Regmi decided to support the three month extension on basis of the ‘Doctrine of necessity’ on 28 August against the verdict given on 25 May. Had the ‘Doctrine of necessity’ had been implemented from the initial verdict such confusion would have been averted. This devious verdict has sacrificed legal values and taken the decision under foreign influence. When the court fails to uphold legal values then the nation will face anarchy. Who will take the responsibility then? The duty of the court lies in giving verdicts by remaining within the ambit of constitution, law and precedents. The verdict given on 25 November was biased politically.
Nepal’s legal standpoint and its ruling system that has prevailed since the rule of Prithvi Narayan Shah were disrupted after the decision of 25 November-2011. The five-member bench led by the Chief Justice must take responsibility of the verdict’s relevant definition and resolve the constitutional instability seen in the nation. The Supreme Court is not alike any other institution that anyone can point out as a document. SC is a holy and trustworthy institution that imparts verdicts with firm reliance on constitutional regulations and legal foundation. This is not the job of court to offer the suggestions. When the CA term was extended, foreigners seemed most eager to express joy and congratulation.
Constitutionalism and legal ideology is a common guidance for a civilized society. However, the act of drafting a constitution is a misfortune for Nepal. CA election was held demanding a new constitution, but without holding any prior discussion and debate on the supposed defects of the 1990 Constitution. There was no preliminary draft of the new constitution when the stipulated deadline approached. None of the parties seem assured as to what kind of constitution, and how we can govern the nation. To hope for a constitution through the CA; another process of election for a new CA is to become enmeshed in the whirlpool of anarchy which the foreigners desire. Interim constitution was called the instrument of agreement.
As Nepali Congress chose to remain in the opposition after the CA election, the agreement had become invalid. With the rupture seen in the agreement the interim constitution became handicapped. The interim constitution recognizes the unanimous or consensus system and has not considered of being opposition. The current issues have arisen due to discord seen then. So the blunder has already taken place. Are we not supposed to rectify than pile for mistakes on the list?
Nepal is an independent and sovereign nation. India and China are accustomed to debate that arises between them. America is riveted on the issue of Free Tibet, and in midst of these international issues Nepal’s political parties cannot strike a common cord due to ideological differences. Thus, Nepal becomes prone to foreign intervention. We cannot continue with the same resolve to free our nation from such a mess. It is not the duty of any Nepali to turn CA into a beggar’s bowl and create crisis in the nation. It will not be in the interest of any politician, court or employees to push the nation to the point of depression.
After 2006 the political party leaders’ blunders and failures have accommodated space for unchecked foreign intervention which will inevitably give birth to a situation that will peril Nepal’s sovereignty itself. Nepal’s identity is in crisis due to the CA. Nepali people ought to be alert to the fact that our adherence of particular political ideology may ambush the nation. It is our failure that foreigners are able to intervene. If we are able to coordinate we can implement any ideology solely for the interest of the nation. Whether it is democracy, republic setup, federal system or any other political system, it must not be in accordance to foreign directives or guidance.
After 2006 the acts carried out by the political party leaders fueled and manipulated by foreign powers have created a grave scenario. Why were the foreigners so joyous and eager to congratulate at the prospect of the extension of CA term? The answer is that it will be easier for them to enter Nepal in the name of crisis. The political parties have failed to adopt a common policy in respect to recognize Nepal’s existence and its prosperity. Due to their failure Nepal has fallen into an abyss of corruption and foreign intervention, which are invariably the major problems.
The parties either did not want to or could not draft the new constitution in two years. To go with their failure to draft a new constitution in the stipulated time they have time and again violated people’s mandate, which is beyond democratic principle. Thus, the ruling class and the regime holders that came after 2006 have failed. As per international precedents like the ‘Doctrine of necessity’, we can apply the ‘Doctrine of eclipse’, and abandon our new venture. It is unlikely that a new constitution would be formulated through the interim constitution, so we need to seek an alternative path. The tug of war between the federal system based on ethnic lines, secularism and republic will not allow room for new constitution.
Afore-mentioned systems have already been imposed, and the constitution is still awaited. The subject is to whether or not to include the issues of federalism, secularism and republic in the new constitution. The current scenario and crisis is the result of forcibly trying to implement the parties’ declaration papers into practice against the sentiments of Nepali people.
The interim constitution cannot accommodate for allowing a fresh election for new mandate in view of failure of the CA to give a new constitution. The general election can be held after the drafting of the new constitution and in accordance to it. We should not keep the world in illusion by creating various debates. We cannot afford to waste time by blaming one another. We all have to live here. We may make mistake in the working process. But, the human beings realize the blunders. The constitution will not be formed no matter how much the CA is extended. The nation is on the verge of failure. In such a situation we have no other alternative to apply the ‘Doctrine of eclipse’ and return to the 1990 Constitution and adopt a legitimate path. We must form an inclusive cabinet and expedite the process of giving right guidance to the nation with the participation of patriotic citizens including Nepal Army and other state organs. We can decide on a common policy. We must not let this holy land lie on a ditch.

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Author: Sri Lanka Guardian

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