“Supreme Court’s Decision Checks Absurdity”


Nov. 21, 2010, 5:45 p.m. Published in Magazine Issue: Vol. 04 No.-11, Nov 19 2010 (Mangsir 03, 2067)

Following the verdict of the Supreme Court, the political course has taken a new turn. Senior advocate and eminent constitutional lawyer BADRI BAHADUR KARKI, who was also a former attorney general, spoke on the legal and constitutional implications of the Court’s order on the ongoing elections of Prime Minister to KESHAB POUDEL. Excerpts:

How do you look at the Supreme Court verdict?

There are two parts. Politically, they need to give a solution and it should be done in a constitutional manner. Ignoring, avoiding or violating rules, the Legislature Parliament and members cannot give any solution. If they want to give any decision on contravention of the constitution, they cannot give the solution. There is the need to establish constitutional norms.

Why it needs interpretation?

Elections of Prime Minister and formation of the government are the constitutional obligation of Legislature Parliament. Therefore, the court has tried to interpret the terms ‘election.’ In the name of election, the Legislature Parliament and the Speaker cannot continue the process unyielding and unending. So the court has declared the exercise of interpretation of rule 7(8) by the speaker indirectly unconstitutional and of no consequences.

Can a court direct speaker in its internal matter?
It can. There are several instances. Even the Supreme Court in Iraq recently issued similar order to the speaker of Iraq’s parliament regarding the formation of the government.

Some are suggesting that the court should have avoided the decision? How do you look at it?

Interpretation of rule is the primary function of the court which again has been mandated by the very interim constitution which was promulgated by these very politicians. How they could blame the court for performing its constitutional duty? And it is not the court but CA (political leadership) which promulgated the constitution. The speaker/chairman, CA and legislature were the parties in the dispute.  It was their duty to make appropriate representation when the case was heard. Nobody did care to make representation though a qualified lawyer.

Now what is the choice before the Legislature Parliament and political leadership?

Players cannot interpret the rule. If CA was acting well within the rules, then speaker or the Legislature Parliament could interpret it. If the issue is something above the rule or related to constitutional provisions, then certainly it is the court of law (Supreme Court), which, in exercise of its power has to interpret it. What were they doing up to 16 rounds? What was the speaker doing up to then? How could they justify it now?

Some are suggesting that the Legislature Parliament can ignore the verdict. What do you say?

The verdict has come. It is there and they are bound to respect and abide by the verdict. If they have any reservation against the verdict, then the proper course will be to file the review petition before the court to reverse the verdict. Without taking proper constitutional course, they cannot show disrespect and dishonor the verdict. Personally, speaker or chairman or any other leader may not like the verdict but the right honorable chairman of the CA which is an institution cannot show any disrespect to the court.

What is the court verdict essentially?
The court interpreted the implementation of provision of rule 7 particularly 7.1, 7.5 and 7(8). The court has tried to correct the absurd and futile exercise of sub-clause7 (8) which sufficiently proved that rerun or reelection of a single candidate Ram Chandra Poudel without any logical conclusion being enacted for so long. The court has tried to stop and correct the absurdity by drawing the attention of right honorable speaker and legislature parliament. 

What is the solution?
Solution has to be found out not ignoring the parliamentary conventions, proceedings and practices. It is not one time exercise and it has to be in conformity with the established parliamentary norms.

When there is only one motion for the election of a prime minister what will be the fate of that motion now in view of the court’s verdict?

The choice before political leadership, speaker and legislature parliament is i) either Ram Chandra Poudel’s proposer has to withdraw the motion as was done in case of Mr Pushpa Kamal Dahal or Jhalnath Khanal. It has to be voluntary and it cannot be coerced or forced. 2) The speaker and legislature parliament declare and approve the election of Mr. Poudel as prime minister. 

What speaker needs to do now?
For instance, supposed a team gives walkover in footbal match in half time, what umpire supposed to do? Definitely, the umpire cannot continue the game and he  has to declare remaining team winner. This is the same in the present situation in the Legislature Parliament.

Can’t they amend the regulations?

They can amend the rule for future cases. Speaker cannot veto and make the motion void which was approved and allowed by himself. The speaker cannot make the motion void in exercise of his so called special power of interpretation.  In preliminary stages, he approved the motion and allowed it to move on.


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