Nepali Times
State Of The State
Dead or alive


The country's supreme court is empowered to interpret the constitution and see that it is functioning properly. Unfortunately, it has repeatedly acted according to the word rather than the intent of the supreme law of the land. As a result, the constitution is in limbo.

Its interpretations on citizenship and language issues have been exclusionary in the past but with its recent judgement on reservations for dalit and janjati students the court has lived up to its reputation of being a bastion of conservatism.

Had the 1990 constitution been fully functional, there would have been some logic in the directive of the supreme court that the government make laws before enforcing positive discrimination policies to address the grievances of the marginalised. But in the absence of parliament, the court's injunction is status quoist. No wonder dalits and janjati students are angry.

In issuing the directive, the court seems to have ignored that, depending upon the position of the observer, the constitution is either comatose or dead. There is no way operative laws can be enacted in the present context without resorting to the patently undemocratic practice of getting an ordinance issued. Sadly, the supreme court itself has been directly involved in creating such a condition.

In a landmark verdict, the court had endorsed Prime Minister Sher Bahadur Deuba's recommendation on 22 May 2002 to the king to dissolve parliament and hold elections on 13 November even when the kingdom was under a state of emergency.

Reading out the unanimous decision of the court, Chief Justice Keshab Prasad Upadhyay had intoned to baffled journalists on 6 August 2002: "The dissolution of the House is a political issue outside the purview of the court. The apex court has the right to interpret only those issues that are of a legal and constitutional nature. It cannot give its verdict on political, social and economic disputes. The court cannot provide a panacea for all kinds of controversies, issues and disputes."

Apparently, he resorted to legalese in order to bypass the responsibility of protecting the constitution. Rather than courting controversy by being proactive in favour of the constitution, the apex court decided to let it crumble under the weight of an internal emergency. Had the court acted with more foresight, we wouldn't be faced with the inevitability of a constituent assembly 15 years after the promulgation of a new constitution. After all, the constitution is a living document that evolves with time to meet realities unimagined by its framers.

Last week, the president of the Bar Association, Shambhu Thapa, told the press that the court should reactivate the constitution rather than allow it to atrophy. Fortunately, the court still has an opportunity to review its decision in light of developments over the last two years. It has been easy for the court to direct the executive to make laws, now it needs to address the more crucial issue of pulling the country out of the current legislative vacuum.

No matter what Deuba says in public, he knows meaningful polls can't be held in the country. So the formation of a new legislature through elections is ruled out. Progressive laws to address the aspirations of the excluded communities can't be passed in the absence of a functioning parliament. The result: escalation of the insurgency.

Legal experts close to the 'ruling opposition' UML have done all kinds of constitutional acrobatics to suggest a way out of the impasse: an all-party convention to form an ad hoc legislature, proportional nomination from the political parties of the dissolved parliament to form an interim parliament and recognition of the authority of Rajya Sabha as that of parliament.

But the most workable alternative for constitutional revival is still the restoration of the last parliament. If not that, then we may as well recognise its demise and begin framing a new constitution.

(11 JAN 2013 - 17 JAN 2013)