Bharatmani Jungam V. Office of the President

 Supreme Court Special Bench: Rt. Hon’ble Chief Justice Khil Raj Regmi, Hon’ble Justice Damodar Prasad Sharma, Hon’ble Justice Ram Kumar Prasad Shah, Hon’ble Justice Kalyan Shrestha, Hon’ble Justice Prem Sharma, Writ No. 68-ws-0014:

Petition: Tenth Amendment to the Interim Constitution of Nepal 2063 be declared null and void

Petitioner: Bharatmani Jungam, a resident of Kathmandu Metropolis Ward No. 34 of Kathmandu District & others.

Vs

Respondents: Office of the President & others

 Where there is a clear specification of time limit, the action thereof must be done or completed within the time limit so specified. The time period stipulated in Article 64 of the Interim Constitution for the making of a Constitution through Constituent Assembly must not be taken as a formality or a show.

 While framing the Interim Constitution, its framer had a fine speculation on the necessity of time specification in order to cause the timely promulgation of it. If this truth is undermined and attempted to draw an archaic interpretation of the original spirit of Article 64 of the constitution to mean that the right to amend constitution includes also the right to extend time period again and again by pushing the task of promulgating into uncertainty constitution into uncertainty shall go against the mandate given by the people. It is also unreasonable through the view point of the constitutional jurisprudence to unusually extend its time period by the Constituent Assembly itself so as to create a limitless and uncertain situation.

 It is in fact a legitimate expectation of people to be assured in the timely making of the constitution when the Constituent Assembly itself has announced the work plan and time schedule of bringing the constitution in order to satisfy the just expectations of the people. Any agency which is bestowed with a historical liability of making constitution is bound to respect such legitimate expectation of the people and become responsible to fulfill the pledges accordingly. If it fails to fulfill its responsibility within the time frame so prescribed and extends time limit again and again on its own accord this trend not only develops a situation of uncertainty and dilemma but also raises question in the legitimacy of its work. One of the key features of democratic rule is to provide also a government accountable to the people in such a rule, the pledges made before the people are required to be fulfilled. In the failure of which people shall have right to ask the reason why ? In this it will be wise to take and perceive the present writ petition as part of seeking the reply of that accountability.

 The respondent agencies are found reluctant and differed to fully capitalize the intent of the constitutional interpretations made in the decisions with clear expression and called for demonstrating their worthiness. Although both the earlier writs were vacated, however, there were made elaborative discussions on the legitimacy of the amendment of Article 64 and defined doctrine of necessity including the time limitations and are based on clear justification of the fact auxiliary to it. No serious attention was found paid on the reasoned proposition made by this court and the judicial viewpoints expressed in them. In such a situation, a conclusion derived only taking their vacation as threshold cannot be held as worthiness to claim that the frequent amendments in Article 64 is recognized and given validity.

 It is worthless to repeatedly mention that the only duty of CA is to make constitution. The mere echoing of such a gospel time and again will not help to reach a meaningful conclusion. It is equally unwise to neglect Article 64 and state that the tenure of the CA will be terminated only after the CA makes constitution and brings into operation. In fact, the intention of Article 82 is not to prolong the time period and make it uncertain by effecting frequent amendments in Article 64 nor such rationality of extending the CA term up to the unknown future will be logical.

 It is not a judicially manageable subject about whether to form a new CA in pursuant to Article 63 of the Interim Constitution, 2063 resorting on the fact that the making of constitution is not possible by the existing CA or give it continuity and ratify the commitment it may make for writing a constitution within a fixed time period by conducting referendum or think about other options available to the people to ensure their right of making a new constitution. Since it is purely a political issue, the solution thereof must be sought by the political level remaining within the boundary of constitutional framework, not going beyond it.

 There is likely to be created a situation of looming suspicion and doubt among Nepali people about whether the issues associated with democracy, peace , prosperity and the major economic and social changes also may fall into the crisis of overall problems to be furthered along with the continuation of transitional period . To free the people from such a fear, there is no option available to the court for now other than giving assurance of coming new constitution through the existing CA itself. This court is not also in favor of making an attitude of continuing such an agency forever as universal and option less which cannot fulfill its major responsibility of bringing a constitution till the uncertain future. Any agency or body created under the constitution by assigning certain duties and responsibilities will have also a fixed reasonable time limit and duration, the present Constituent Assembly also cannot be an exception to it.

 Any individual or institution liable to discharge the assigned duties and responsibilities when fails to do so by his incapacity or due to arising a situation beyond control is referred to as a circumstance beyond control. It is the very intent of the doctrine of necessity. If such a situation cannot be neglected or avoided and it compels to take a decision and if such a decision would not have been lawful even in a normal situation and the reasonableness and legality of occurrence of such a condition is when substantiated by the time and situation, the doctrine of necessity could be attracted. Provided that, the doctrine of necessity cannot be applied in concealing one’s own fault, inaction and the problems created by one.

 It does not shove to any lively organization to take the doctrine of necessity as tool of defense for ones own miscreants. The constitution always hopes the positive response and liveliness on its and its components doings. The constitution is such a lively instrument which bears the capacity of operating the whole state mechanism actively and dynamically even when there are possibilities of arriving multifold of obstacles, a hardships and difficulties across the life of the nation. So a constitution does not imagine a situation of lifelessness of the state which impairs the whole process by considering the one and the same problem as the never ending one.

 The aspirations of Nepalese people to bring about a new constitution through the Constituent Assembly, the fund consumed by the state to date after the initiation of constitution making process and to secure the achievement CA has accomplished up to now in course of drafting the constitution are the most significant constitutional responsibilities to be carried out by this court. It is natural to expect that all possible efforts will be made to promulgate the constitution within the time period extended by the tenth amendment. In otherwise condition, it will be more appropriate and justifiable to provide the last opportunity to the present CA if it needed the additional time period in order for the completion of remaining works and bring about the constitution.

Decision

Khil Raj Regmi,C.J: The facts in brief and the particulars of the order made on the present writ petition filed in this court pursuant to Article 32 and Article 107(1) and (2) of the Constitution seeking nullification of the truth amendment to the Interim Constitution of Nepal, 2063 made on 2068/5/14 since it is in contravention to the provisions enshrined in the constitution, is as follows:

Article 64 of the Interim Constitution of Nepal, 2063 has provided for the tenure of the Constituent Assembly. Except when the CA passed a resolution for its premature dissolution, the tenure of the CA will of two years from the date of convening its first meeting. In regard to such provision, the Supreme Court has given opinion in writ No.0056 dated 2068/2/11. In this, it is argued that the term of the CA should be maximum of 2 years and in special circumstance, or when there exists an emergency period in the country, it may be extended not exceeding 6 months. From above proposition it is clear that the tenure of CA will be not more than 2 years and additional 6 months only in view of the doctrine of necessity. The respondents were obliged to take that decision into account as a guideline but in contrary they caused 3 months extension on 2068/2/14 unethically. We the petitioners had made complain against such act of the respondents through Writ No.0071. The opinions expressed in the earlier decisions were sustained also in this writ petition. In such a situation, a notification published in Nepal Gazette Vol.61, Supplementary Issue 21, dated 2068/5/14 so as to extend additional 3 months term of the CA. Since the tenth amendment to the constitution effected as per that notification is illegal and contrary to the law, we are here with this writ petition with a plea that such an act of the respondents be invalidated.

Until before the eighth and ninth amendments to the constitution, there was a clear provision that the tenure of the CA will be of 2 years. The writ petitions filed with this court in connection with those amendments were clearly outlined about the term of CA. At that time even if those amendments were not declared invalid, though were not recognized lawful as usual. In such a situation, again there effected the tenth amendment, therefore, such an act should be the subject of judicial review. Article 148 provides for the amendments to the constitution. While affecting the eighth, ninth and tenth amendments, the said Article are found ignored. Likewise, Article 64 provides for the manner about how to make changes in the term of CA is as prescribed under the same Article. In case the constitution did not come into force within the stipulated time, there may ipso facto rise a political question about which the preamble of the constitution suggests that the only way out of the problem is to go into the periodic election. In such a situation the act of frequent extension of time limit about which the Article 64 clearly specifies shall be ipso facto void in the eyes of law.

The trend of extending time period once and again in this way and the relative progress in relation to making the constitution is if not achieved within the time period so extended, such an act will hinder the making of constitution till the uncertain future. In that course, there has been the gross misuse also of the doctrine of necessity. The doctrine of necessity should not become the reason for making the Article 64 inoperative. If the representatives sent by the people failed to accomplish their mission within the prescribed time period and the expectations of the people were not met, the inherent right of people to select new and qualified representatives should be honored, and for this and in such a situation the election will be the only way out for receiving the fresh mandate. The mandate given by the people through election is only for 2 years which was speculated also by the maker of the Constitution. Therefore, no time period other than what the people decide could be extended.

Now therefore, the tenth amendment to the constitution is fully unconstitutional and illegal on the basis of the ground mentioned above and also on the basis of the opinion expressed by this court in the decision made upon Writ No.0056 and 0071. It is against also the spirit of the preamble and the Articles 2, 13, 32, 63, 64, 83, 85 and 148 and involves serious constitutional and legal issue of public right and interest. So it requires an order of prohibition, certiorari or any other order as it may deem appropriate to be issued in pursuant to Article 1, 32, 107(1) and (2) and be declared invalid the tenth amendment to the Interim Constitution of Nepal, 2067 published in Nepal Gazatte part 61, Supplementary Issue V declared invalid from the very date of its commencement.

Moreover, an interim order also is hereby requested to be issued in the names of respondents Prime Minster and the speaker of the House prohibiting them to register any bill in the Parliament so as to cause any change or alteration in the wordings and phrases contained in Article 64 of the constitution until this writ petition is finally disposed of. The petitioner, in petition also requests to be given priority in the hearing since it involves a complex constitutional question and asks to have the date of hearing fixed.

The single bench of this court orders on 2068/6/5 requiring the respondents to submit their written reply in writing with explanation about how this situation arrived ? Why the orders as sought by the petitioner need not to be issued? If there exists any reason or ground for not issuing the order, submit a reply thereof in writing through the office of the Attorney General within 15 days of receiving this notice of the order. The respondents be sent also a copy of the writ petition each along with the notice and notify the matter thereof to the office of the Attorney General by fixing the date of 2068/7/1 so as to present the case for hearing. Similarly, inform Nepal Bar Association and the Supreme Court Bar Association for representation of 3 senior advocates or advocates each to assist the court (amicus curie). The earlier decisions made by this court in this connection also be accompanied with this case file. Write the concerned Bar Association to inform those legal practitioners desirous of submitting written plea prior to the date of hearing and let know to the concerned legal practitioners about the same.

The constitutional as well as the legal questions raised by the petitioners in this writ petition have already been answered by the full bench of the Supreme Court through the writ Nos. 066-ws-0057 and 067-ws- 0071 filed by these petitioners in regard to the eighth and the ninth amendments to Interim Constitution of Nepal. So there exists no reason and justification in filing the present writ petition again raising the same question challenging the act of extending the CA term for 3 years and 6 months by the tenth amendment. In paragraph 12 of the petition, the petitioners have made a claim that the Supreme Court has not given validity to the eighth and the ninth amendments. This fact is not supported by the order made by the Supreme Court. The court, in reference to writ No. 0066-ws-0056 has reasoned the vacation of the writ on the ground that the time period extended by the eighth amendment has already been terminated whereas in reference to writ No.067-ws-0071, the court denies the claim on the ground of doctrine of necessity and thus legalized both the amendments on that ground. The claim of the writ petitioners therefore appears baseless and extravagant.

The concern shown seriously in writ petition about the need of timely bringing of the constitution as mandated by the people is praiseworthy. The CA had developed a work schedule (time table) on 1st Marga, 2065 and commitment shown in completing the writing of constitution within the period stipulated in Article 64 and has been working accordingly. Despite such efforts, the mission could not be accomplished within the time frame which compelled for extending the time period up to 3 years. This is the ground reality witnessed by all concerned.

The task of writing constitution was in progress giving due vigil to the limitations fixed by the CA Rules and allowed by the time table. In that course of action, there formed 40 teams from among the total member of the law-makers and assigned to all the 240 constituents of the country to conduct opinion poll of the people through questionnaire for a period ranging from 2065/11/16 and 2065/12/9 which could be taken this as a historical achievement. All the subject committees and the constitution committee, working under their respective frame works for a period between 2066/2/9 and 2066/10/20 prepared the concept paper on the future constitution and a preliminary draft report thereof and, submitted to the CA and had held discussions over the report of each committee allocating to each paper a 30 hours deliberation. The CA gave nod to the report of the committee on natural resources, the economic right and revenue allocation, determination of the structure of the constitutional bodies and the protection of right of minority and marginalized community and has sent to the constitutional committee on 11th Magh, 2066, 19th Falgun and 21st Chaitra, respectively in order to prepare the first integrated draft. The task of preparing the first draft of the constitution had began from the month of Falgun 2066 by preparing a preliminary frame work of the future constitution enclosing with the preliminary draft of the committee received after their approval from the CA which was divided in 27 parts along with other collateral facts (basic elements) to be contained in the constitution together with the preamble and schedule. The said business is still in progress. Because of the collision of facts such as, duplication, contradiction, omission and to overcome the unresolved and disputing report of the various subjects committees, a 15-memberd concept paper and preliminary drafting report study committee was formed by the 29th meeting of CA held in 2066/2/13 to finalize those misgivings through consensus and to integrate them in one and give final shape. The said committee completed the study of report of all the subject committees and submitted the final report of the committee on 2067/6/14 to the chairman of the CA along with 210 questionnaires unable to be settled by it. In order to reach a political consensus over those unresolved questionnaires there held a meeting of all parliamentary party leaders representing in CA in the move of the chairman of CA and reached consensus on 132 unresolved issues, between 2067/6/19 and 2067/8/26.

This process of constitution making suffered many times from the incidents occurred outside the CA. Because of frequent government reshuffle and the failure of peace process to reach a meaningful conclusion in time as expected which has very close relation with the making of the constitution caused obstruction in the writing of constitution, time and again. These are the reasons why the writing of constitution did not completed within the time period hoped by the people and thus needed extension of CA term. After making one year extension in CA term by the eighth amendment on 14th Jestha, 2067 and accomplish the mission within the time frame, it involved heavily in that job with necessary alternations in its work schedule for 11th time. Many issues resolved during this period and in 78 issues related with the report of the 7 committees and 78 issues related with state restructuring, the constitutional committee itself shall prepare the first draft by bringing consensus on its own. If no consensus reached on any issue, it shall be presented to the CA for decision. In this way, the reports of the 7 committees and report related with state restructuring have been forwarded to the constitutional committee on 2067/10/12 and 2067/12/3, respectively. This is the reality. The constitutional committee has formed a Dispute Resolution Sub-committee on 2067/11/13 consisting of the top leaders of the major parties to hold discussion and reach consensus on the unresolved issues and coming up to 2068/2/14, there has reached consensus on 53 issues out of 78 issues related with the 7 committees and only 25 issues were remained to be overcome. The other 78 issues related with restructuring were required to have obtained the opinion of the experts and reach conclusion about which the discussion was holding on.

In this manner, the CA has been successful in preparing the significant base for a demarcating constitution and the disputes also were relatively narrowing down. It was ready in preparing the first draft of the constitution by resolving the remaining issues so as to be completed after collecting the opinion and advice of the sovereign Nepali people. It was the most needed thing of the hour and so compelling to effect the 9th amendment to the Interim Constitution of Nepal, 2063 which the legislature- parliament by did extending the tenure of the CA by 3 months. Within the period of this extension there held the 9 consecutive meetings of the Dispute Resolution sub-committee under constitutional committee. These meetings reached consensus on 3 issues whereas the 78 issues related with state restructuring narrowed down to 25. Now there are only 47 issues left to be settled by the Dispute Resolution Sub-committee and then immediately the first draft of the constitution will come out and the tens of years of long awaited aspiration of Nepali people to make a constitution through representatives elected by themselves will be fulfilled. This being the main reason and ground of the doctrine of necessity, I, most respectfully request to this revered court that the Legislature parliament has made the tenth amendments to the Interim Constitution of Nepal and extended the tenure of CA by 3 months. There is no apparent reason for not coming out the constitution. Now the constitutional committee has been working in preparing the draft of all the subject matters so far resolved and includes it in the frame of the first draft of the constitution.

There is no dispute on the fact that the main objective of the Interim Constitution of Nepal is to make a constitution through Constituent Assembly. It is clearly manifested by the facts mentioned in various paragraphs above that the CA is heavily, involved in this task. The Interim Constitution does not provide for the fresh election of the CA if the CA formed after the first election fails to bring about the constitution. It is compulsory to make amendment to the Interim Constitution of Nepal, 2063 also to form another Constituent Assembly as complained of by the petitioners because for taking a fresh mandate there needs to held election for which the political powers existing in Legislature – parliament are required to be consented to add such provision in the constitution. It is a political issue whether or not to opt for such a risk and this should be concluded only through the political level. If there exists any possibility of political consensus – making the peace process reaching near to end into meaningful conclusion and standing on the achievements so far accomplished by the CA, there appears a clear ground for bringing about a democratic constitution. For this the political powers and Constituent Assembly also are found committed. Against such background, it is thought more relevant also to the political view point to make the constitution by this very CA. To forge political consensus towards reaching the nearly completing process to the conclusion will preserve the best interest of the people. The Legislature-parliament,while effecting tenth amendment to the Interim Constitution of Nepal, 2063, has fully respected the intent and spirit of the order made by this revered court on 2068/2/11 and 2068/5/11, respectively, and, the 3 months extension of the term of CA was motivated with the legitimate objective of performing the task of making constitution as per the mandate given by the people which is consonant also with the doctrine of the necessity. Hence, no order as sought in the petition seems necessary to be issued. The writ petition is requested to be quashed. These were the contents of the written reply submitted separately by the CA secretariat and the speaker of the Parliament, with similar version.

The petitioners in their petitions are unable to clearly mention the reason about how and by what action or the decision of the Office of the Prime Minister or the Council of Ministers have been unconstitutional. While making claim of judicial review of any action or decision referring it as unconstitutional, the reason thereof must explicitly be mentioned and require to furnish the proof and evidences with the petition to substantiate the claim. In the lack of such evidences, the mere claim will not deserve any value. The present writ petition lacks those requirements. Hence no order could be issued as demanded and the writ petition is requested to be quashed.

The Interim Constitution of Nepal, 2063 was adopted with the objective of making a new constitution through the Constituent Assembly and is also a provisional instrument for operating the state affairs during interim period until the new constitution comes into force. Since the Constituent Assembly is a basic structure within the Interim Constitution of Nepal, 2063, without Constituent Assembly we cannot just imagine the existence of Interim Constitution, 2063. Though Article 64 provides for the tenure of Constituent Assembly, in Article 82 there is a provision of ending the purpose of Constituent Assembly only from the date of commencement of the Constitution adopted by the Constituent Assembly. In addition to this, the provision contained in Article 64 cannot be taken as amendable since Article 148(1) provides for a condition.