Apex Court verdict encourages CA members not to draft new constitution

Khimlal Devkota

Constitutional Expert, Unified Maosits' Party

TGQ1: How have you Mr. Khim Lal Devkota taken the fresh verdict made by the Supreme Court of Nepal? Your exclusive comments please.

Mr. Devkota: I have observed it, to tell you frankly, through different angles simply because the verdict in itself has several dimensions contained therein. To analyze these, we the law practitioners, I think  mainly should consider three things. The first is the existence of the provision of law, second is the prevailing political situation and the third being the idea to read the mood and the sentiment of the people at large.

I think these three ideas have been taken into account while making the verdict by the apex court.

Looking through the eyes of the laws whether the changes effected in the interim constitution was a valid point or not? As regards the laws and the regulations made for providing of the perks and the facilities to the CA members for the functioning and the performances of their jobs can’t be taken otherwise.

But the present issue is directly related with the existing state of country’s politics. And this is what has invited serious controversies from various societal sectors across the country.  

Thus I think that the decision made by the Supreme Court in the current political context is somewhat a faulty one which has in a fit of sentiment entered into the domain of politics and thus I take the decision in a serious manner and wish to evaluate it critically.

 TGQ2: What decision was made by the Apex Court in an issue that is of political nature then? Was it an incorrect decision made by the special bench of the Supreme Court? Your expressions please.

Mr. Devkota: The fact is that the special bench of the apex court compared the Article 64 with that of the article 42. In my line of thinking by comparing these two different articles while making the verdict, the Court has done the worst. Secondly, the Court should not have talked on matters of caste, language and federal order. Some may even think that the Court exceeded its stipulated limits. One could imagine easily that the SC has gone too far ignoring its own limits.

Yes! We do have some issues to be sorted out on matters of caste, language and of the federal order but yet the court’s claim that these issues consumed much of the time is incorrect in that we have, talking in a practical sense, not that much issues left to get it sorted out by the Constituent Assembly body. Whatever issues were left have been left were of political nature which could be sorted out through political dialogues and discussions among the parties and thus I think that the Supreme Court spoke on issues which it was supposed not to speak.  The SC made a blunder.

TGQ3: What sort of impact will this fresh Court verdict will have on country’s politics and also on legal matters? Your opinions please.

Mr. Devkota: Definitely, the court’s verdict will have a long range impact on politics of the country. This is what I firmly believe. Look! The fresh verdict of the court says that there was no need now effecting any amendments in the constitution which means that the constitution could not be drafted and moreover the verdict allows the CA members to continue as members of the body for an indefinite period. The verdict records and stamps such things. This is the most controversial issue by all means. The honorable court while making decisions on such sensitive and controversial issues must have taken into proper account and evaluated in advance the prevailing societal and political situation of the country also. 

This Supreme Court verdict has hurt the sentiments of the general people. Because this verdict encourages the CA members not to draft the constitution but yet allows the members to continue with their current posts for all time to come and thus a negative feeling will go to the people at all levels that the constitution will not be drafted which would ultimately invite a fresh revolt.  I think it may invite a fresh revolt.

TGQ4: But yet don’t you think that the fresh SC decision has facilitated the CA body to extend its tenure once again in a legal manner? Isn’t it that? What say you Mr. Devkota? Your remarks please.

Mr. Devkota: No! Not at all! Let’s not forget that legally speaking, the political parties and leaders have already pledged to draft the new constitution well within two years time. The commitment remains. They have put their respective signature.

What one must not forget is that not all political interpretations made by the legal sector need to be correct. The existing constitution was amended enjoying the consensus amongst the political parties because it was a political issue. But the issue we have been taking up at the moment is a political one. And political issues need to be sorted out through the effective use of available political instruments. But the political issue which demanded treatment from the political sector has been interpreted by the judiciary itself.

To remind you, the formation of judiciary, legislative and the executive are matters to be taken up by the political sector and instruments. But these institutions can’t be formed by the interpretations of laws made by the legal domain. Political mechanisms form these institutions but it should not be otherwise which is what has happened.

TGQ5: Do you conclude that this fresh Court decision will have some impact on Nepali politics? Is there any possibility for such an impact? Your comments please.

Mr. Devkota: I see the SC verdict having been influenced from two differing sides. The first and foremost that I have noticed from this decision is that there will be the prevalence of the thought in the political quarters that they can extend the CA tenure for an indefinite period. The intent and the motive of the fresh verdict appear to have been like that. It is altogether a different matter that how the political parties and their leaders take up this new situation. 

Secondly, I am determined in saying that in the remaining period the constitution will not be drafted. If the constitution is not drafted then the CA body will be dissolved. The verdict has also encouraged those to exploit the political situation to their political benefits in the absence of the Constituent Assembly body.  Concurrently this verdict has also prompted those political parties and leaders who wish to prolong their CA tenure for an indefinite period in order to prolong their tenure in the CA body as members. The encouragement could be distinctly observed in the said SC decision.

Side by side, the SC expressions have also tempted those who wish to exploit from the emerging political situation in their benefits in the absence of the CA body as and when it gets dissolved. Thus I think that this special bench verdict of the Supreme Court will have a far reaching impact in the overall politics of the nation. This is what I see to it. (Bimarsha Sapthik)

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Comments

  • Posted on - 2011-03-13    by     bhimrajgurung
  • More often than not laws are interpretated to the conviniece benefiting certain catogories of people who knows little bit of law and they interpret it to their own convinience. We are still far away from thinking on the human values and natural justice.
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