26 June - 2 July 2015 #764

Needless drama

Like killing Caesar to prevent an anticipated misadventure
Damakant Jayshi
We should all thank Supreme Court (SC) Justice Girish Chandra Lal for exposing all the forces stacked against a new constitution for the past seven years. It has also exposed the hypocrisy of our political class.

Acting on a writ petition against the 16-point agreement between four major political parties because it ostensibly violated the Interim Constitution’s provisions on state restructuring, Justice Lal issued an interim order on 19 June, directing the government and the Constituent Assembly (CA) to halt the constitution drafting exercise until further order. He cited violations of Articles 1, 82 and 138 of the Interim Constitution.

Justice Lal justified it further by saying that the new constitution would invite controversy, impact the law and order situation and cause conflict if it violated the Interim Constitution. Whoa! Killing Caesar to prevent him from some anticipated future misadventure? Can justice be based on what might happen?

To be sure, the political parties that engineered the 16-point deal on 15 June did so not out of a vision for the country but out of pure political calculus. Sure enough, they lashed back at Justice Lal’s interim order, terming it an overreach of the judiciary and intruding on the exclusive preserve of the assembly and ruling on a ‘political’ issue. Some even suggested that Lal could be impeached. Some parties opposed to an independent judiciary saw this as a great opportunity to clip the wings of the apex court.

The irony of political leaders citing the separation of powers and an independent judiciary was not lost on the small proportion of Nepalis still following the endless saga of Kathmandu politics. But this is not to say that Justice Lal’s interim order is not full of contradictions. The 16-point pact was reached by four political parties, but Lal issued the interim order in the name of the government and the CA. It is preemptive in that it aims to stop the CA from acting on the 16-point agreement.

The biggest contradiction is that the order purportedly sets out to protect the CA from political interference but, in doing so, the single bench blatantly interferes in the exclusive domain of the CA. Justice Lal based his order, among others, on Article 138 of the Interim Constitution. Here’s what Clause 3 of the same Article says: ‘The final settlement on the matters relating to the restructuring of the State and the form of federal system of governance shall be as determined by the CA.’ The SC has neither authority nor role in instructing the CA to act in a certain way. It can, of course, determine whether a final product of the assembly is as per the provisions of the Interim Constitution. So the question arises: Why the haste?

The most unfortunate consequence is that the interim order lent credence to calls to rein in the SC’s independence. Justice Lal’s order was aimed against a political decision. In the past, the SC has refused to entertain writs because they dealt with political issues: for example when Chief Justice Khil Raj Regmi was named the head of the interim government, the SC refused to deal with it.

The SC’s May 2012 order refusing any further extension of the first CA has been compared to Justice Lal’s interim order. The argument goes that if the 2012 decision was acceptable, this one should have been as well. The first CA, elected for two years in 2008 was extended four times – first by a year, then by three months twice and finally in November 2011 as a last and final extension of six months. At the time of approving the last extension, the SC had said that the CA would be automatically dissolved after the end of the ‘last’ extension even if the parties fail to draft a constitution within the extended period. It suggested either a referendum or a new election. There is simply no comparison, in spirit or content, between May 2012 and June 2015.

That order of 25 November, 2011 had this to say: ‘Whether to deliver the constitution within the next six months or to go for a referendum or a fresh mandate or any other option is purely an issue to be decided politically, as ‘these are not supposed to be managed judicially’. Was Justice Lal aware of this?

The larger bench could decide on Lal’s interim order, but this was such a needless drama and a waste of time.

@damakant

Read also:

Hold it right there, Bidushi Dhungel

Interim order and interim constitution, Binita Dahal

Deconstruction before reconstruction, Editorial

Political tectonics, Anurag Acharya

Constitution deal inked, Om Astha Rai

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