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Final Hearing

The fate of the Constituent Assembly is in the hands of the Supreme Court

Bipin Adhikari
The Kathmandu Post, June 24, 2011
Source: The Kathmandu Post

The distortions by Kathmandu’s major media outlets in reporting and analysing the Supreme Court’s (SC) May 25 decision will soon be costly to the constitution building process. The decision came in response to a writ petition from Bharat Jungum and Balkrishna Neupane, and it has changed the course of the Constituent Assembly (CA) in a miraculous way.

The SC’s full bench judgment in this case overruled the November 4, 2010 verdict issued by its three-member special bench, which allowed the extension of the tenure of the CA as necessary ‘until promulgation of the [new] Constitution.’ The revised opinion of the SC pointed out that it did not agree with the ruling of the special bench. The line of argument of the new ruling was that the constitution makers had not conceived of the extension of the two year CA mandate beyond six months in an emergency situation.

The decision of the case of Jungum and Neupane that came from the full bench was quite straight forward. The SC ruled out a constitutional extension of the CA term, except under a state of emergency or some other (lesser) special circumstances, according to the doctrine of necessity, and for no more than six months. The SC stated that, since the CA tenure cannot be extended for more than six months as per the proviso of Article 64 of the Constitution, it is wrong to extend the tenure for longer.

Commenting on the earlier ruling, Chief Justice Khilraj Regmi, Justices Damodar Prasad Sharma, Ram Kumar Prasad Shah, Kalyan Shrestha and Tahir Ali Ansari said the term cannot be extended an infinite number of times. Without mentioning anything about the Interim Constitution (Ninth Amendment) Bill 2011, awaiting the order of the Chairperson Subash Nemwang to introduce it in the house at that time, the SC specifically stated that extension of the house on any basis for more than six months is not contemplated by the constitution. In other words, the Interim Constitution (Eighth Amendment) Bill 2010, by which Article 64 of the constitution was amended, meant a one-year house term extension did not meet the constitutional requirement.

The court pointed out that while it accepts the unconstitutionality of the eighth amendment, it does not want to overrule it for the simple reason that there have already been many developments in the constitution building process. Based on the (unconstitutionally) extended period, annulment of these developments is not in the interest of the public. However, it is clear that if the eighth amendment extending the mandate of CA in normal times for one year was unconstitutional, then the ninth amendment proposing the same for another additional year cannot be constitutional ipso facto.

Nepali media, both electronic and broadsheet, altogether ignored what was delivered by the SC judgment and only propagated the Court’s point of view on the six month extension. The context was of eighth amendment bill, not the ninth amendment bill. Efforts were made to ensure that the pending bill did not get aborted where it stood at that moment—ie at the CA Secretariat.

Following the widespread disinformation, throughout the evening of May 28, the Deputy Registrar of the Supreme Court, in the second such move in Nepal’s history, even spoke to the BBC Nepali programme (considered the most credible media outlet in Kathmandu) and explained what the court order meant. This clarification was ignored altogether until the Constitution (Ninth Amendment) Bill 2011 was somehow passed by CA in the early morning of May 29. But the fact remains that the government, instead of withdrawing the ninth amendment bill from the house, decided to pursue it in unconstitutional way.

The CA passed the Ninth Amendment to the Interim Constitution in the morning of May 29, 2011. Mid-night of May 27 was the hour when the CA expired as an institution. Legally, it does not exist anymore. Any attempt to give it a new life should have been done before the mid-night on the 27th. The CA missed the deadline during the passage of the Eighth Amendment Act in 2010 as well. At that time, the bill was passed after the midnight of May 28. In other words, it was done after the expiry of the CA mandate by 25 hours.

In 2010, a local Radio quoted former Speaker of the House of Representatives, Daman Nath Dhungana for his statement that once the house starts its proceedings within the stipulated time, it does not matter how long it takes to pass the extension bill. By this logic it was his position that the proceedings were still valid, and the change in date did not cost constitutionality of the action. He said this is the standard rule back in Westminster as well. Although the existence of any such practice is still to be proved, there is nothing in Nepalese traditions which supports this conclusion.

Even if this argument is accepted, in both cases the proceedings to pass the amendment bills started not in the mid-night of May 27 but of May 28. By that time the continuity of the house had already been broken, according to the standard legal practices of Nepal, and what is broken cannot be mended through the process of constitutional amendment. It will be difficult for any court in the world to say that what was passed in the early morning of May 29th amounts to passing it before the midnight of May 27th.

The story might look academic to many politicians, but unfortunately it is not. In fact, Advocate duo Bal Krishna Neupane and Bharat Mani Jungam have already filed a writ petition at the Supreme Court against the Ninth Amendment of the Interim Constitution on which the “show [your] cause” notice has been issued to the respondents. The petition has made President Ram Baran Yadav, Prime Minister Jhal Nath Khanal, Constituent Assembly Chairman Subash Chandra Nembang and the Constituent Assembly as a whole as the opponents.

It is advisable, therefore, that the political parties reach an agreement on the exit plan from the current stand off as soon as possible, before the case comes up for final hearing very soon. The CA is likely to crash in the absence of a strategy for success. Unless the government is able to remove the remaining obstacles to the peace process and help CA adopt a ‘framework’ constitution—dealing with the agreed constitutional outline at this stage and a long prescription for transition management—well before the SC takes up the final hearing in the case, chances of the CA’s tragic end cannot be ruled out.

Adhikari, a constitutional expert, is affiliated with Nepal Consulting Lawyers, Inc.

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