Very few people normally read full text of a Supreme Court verdict. For the commoners, whatever journalists write or disseminate through media is the constitutional interpretation of any important legal issues. Lawyers are also not seen fair at times in giving correct messages to the people due to their political biases. And no wonder, politicians read the court verdicts and views on them as suited to their political interest. In this way, all goes well in the state of political and legal spheres in Nepal except the nation which suffers most from the tragedy of legal uncertainty and political instability.
The judges from the ivory tower, immune from public criticism, keep on laughing at the lawyers’ discourses and make the mockery of judiciary driven constitutionalism. Political parties are the immediate beneficiaries of such fallacies. This is what has exactly happened witha recent judgment of the Supreme Court Full Bench on the issue of last year’s extension of Constituent Assembly’s tenure through eighth amendment of the Interim Constitution. Article 64 of the Constitution which mandated the Constituent Assembly to complete the task of constitution drafting in two years was amended to extend the period from two to three years.This was challengedin a Public Interest Petitionat the Supreme Court filed last year by two lawyers. The full text of the verdict delivered by the court last November has however been released recently, about a couple of weeks ago (ref. Vijaya Raj Shakya vs. Legislature-Parliament and others, Certiorari Writ, Nov 2010).
An ordinary Nepali individual could not expect anything more than what a team of three justices, although very wise and competent, could conclude under the Interim Constitution of political transition in their unanimous verdict, which might be simply summarised in six words: “constitutional amendment valid; writ petition quashed”. What is actually disturbing than the conclusive verdict, as shown in bullet points, is the pseudo constitutional jurisprudence that has been pronounced through ratio as well as obiter. Neither the verdict has its head, nor a tail. Politicians and political lawyers may however enjoy playing with each word of the text. As every Nepali and CA member, not to talk about a litigation lawyer and legal academics, in the present day Nepal is blessed with the designation of ‘constitutional expert’, this commentator as a student of constitutional law will whole-heartedly welcome even the harshest criticism one may but sincerely offer on this note.
While denying to speak on the questions of ‘possible implications of the repeatedly extended and prolonged Constituent Assembly of a huge size’ and the ‘replacement of present CA by a freshly mandated new Constituent Assembly’ as hypothetical issue, the court has itself dwelt on hypothetical assumptions in dealing with all constitutional issues. The court is obviously alarmed with apprehension as expressed at three places that “a situation of constitutional vacuum (without a constitution in the country) cannot even be imagined” if the petitioners’ demands are entertained and the tenure of the CA has not been extended.
Lost in such hypothetical questions, the court goes on and on to justify the extension of CA on the grounds that even a legislation sometime takes one full year to get it through. The court appears to have forgotten that the Interim Constitution which it was interpreting was produced in less than four months, and the earlier 1990 Constitution in little over six months period. How could the court forget the existence and continuation of the Interim Constitution until it has been replaced by a new one? Where did the question of vacuum come? The question is: Should the CA be constitutionally obliged to produce a Constitution within the prescribed period? Moreover, the petitioner was advocating for the election of a new Constituent Assembly if the existing one failed to produce a new Constitution in time.The court avoided to answer this question while unnecessarily groping on a series of imaginative and hypothetical situations. Can the Supreme Court give guarantee that the current CA will deliver a new Constitution by May 28, as the judges have expressed their unsolicited faith on the honesty, ability and wisdom of current CA members and the CA?
Truly speaking and with due respect to the court, one may say, no pronouncement in the case has hardly emanated any lofty constitutional jurisprudence worth appreciating in the verdict. On the contrary, however, the court has unfortunately slipped into muddy water through distorted interpretation of the constitutional provisions. To note a few of them as examples as stated earlier are: firstly, the Supreme Court is wrong to suggest that Article 64 which sets out two year deadline for drafting a Constitutionis directory, not mandatory, as the Constitution is the supreme law of the land under Article 1 and all constitutional provisions are mandatory and enforceable except the State’s Responsibilities and Directive Principles (Chapter 4), and the Preamble. Secondly, Article 64 spelling out two year tenure is not CA’s goal it is the ‘limit’, a deadline. Thirdly, harmonious interpretation is needed not between Articles 33 , 64 and 82 alone as stated by the Supreme Court but amongst Preamble and Articles 1, 59, 63, 64, 82, 83, 143 and 148, all together. Fourthly, Article 33, which is a part of State Responsibilities and Directive Principles is not enforceable and obligatory as suggested. Fifthly, and above all, a harmonious interpretation of Articles 64, 82, 143 and 148 prohibits the Legislature-Parliament from entering into the jurisdiction of Constituent Assembly which alone has the power to reduce or increase the tenureof CA through a resolution. This puts a limit on the power of Legislature-Parliament to increase the tenure of CA. The court may not have answers to these questions.
Lastly, to make the note short, the court has entered into the regime of ‘constitutional politics’ in order to help stretch and safeguard the longevity of the Constituent Assembly. It is therefore bound to be controversial as it has failed to respond to the genuine question of a fresh poll of CA in case the present CA is unable to even draft a ‘skeletal framework’ before May 28 to justify its possible extension through another amendment of Article 64, which is solely a jurisdiction of CA. Despite the Supreme Court‘s numerous hypothetical discourses of political nature, the question is still alive as to what would happen if the CA fails to produce a new Constitution and the Legislative wing of CA is unable to pass an amendment bill. Let this hypothetical question not be a relity.
Dr. Surya Dhungel, Constitutional Lawyer (email@example.com)