“HoR And Nepal Government Have Started Treating The “Declarations” As Supra-Constitution” -- BADRI BAHADUR KARKI
BADRI BAHADUR KARKI is a former attorney general of the Kingdom of Nepal. Known for his principled stand and clear views, prominent constitutional advocate Karki spoke to KESHAB POUDEL on contemporary politico-legal issues. Excerpts:
Is the Constitution of the Kingdom of Nepal 2047 still the “Fundamental Law” or has it lost its original status in view of the HoR Declarations, 2063?
It is a fact that the reinstated House of Representatives (HoR) has suddenly and suo moto converted itself into a sole constituent authority and promulgated a historic declaration; claiming that it was mandated by the People’s Movement II to do so. Among others, vide clause 9 (c), the Declarations says “to the extent of its inconsistency, all the provisions of the Constitution of the Kingdom of Nepal 2047 and any other provisions of law in force for the time being, shall be void.” Notwithstanding the constitutionality of the “Declarations” itself, for all intent and purposes, the HoR and Nepal Government (GoN) have started treating the “Declarations” as supra-constitution and, thereby, reducing the 2047 constitution to a supplementary document or an appendix to the Declarations.
What would be the implications of this situation?
This has created a very unusual situation fraught with the danger of complicated and far-reaching legal consequences. HoR’s steps are absolutely unusual in that all of a sudden the authors and faithfuls of 2047 Constitution have withdrawn their commitment and support to it. As a result, at the minimum, its status of the “Fundamental Law” has vanished. By informally conceding to take oath of allegiance to “Declarations” the judges of Supreme Court through the Full Court, it seems, have already committed to recognize and uphold the supra-constitutional status of the “Declarations”. In view of this, one can say that the 2047 Constitution, on and from 4 th of Jestha 2063, has lost its majesty and fundamental status. Sooner or later the controversy will land in the Supreme Court for the authoritative interpretation or resolution.
What could be the role of Supreme Court, then?
In view of the overriding and sweeping provision incorporated in Clause 9 (e) of the HoR Declarations 2063, any inconsistency to or otherwise of any provision of 2047 constitution or laws shall be determined by HoR itself. This would mean that Supreme Court will have no jurisdiction to test the constitutionality of the said HoR Declarations. According to the universally accepted and practiced constitutional norms and conventions no “Declaration” of whatsoever nature or source have binding force in law. This would mean that said HoR Declaration would not and could not have superseded or voided the provisions of 2047 Constitution. The reinstated HoR had every right to amend all those provisions of 2047 Constitution, which the “Declaration” intended to scrap, by pursuing the “amending process/power” available to it under the 2047 Constitution.
Why then in your opinion did HoR deemed it fit to take recourse to making the HoR Declarations 2063 instead of amending the 2047 Constitution itself and which would have helped avoid the controversy of constitutionality?
Well, this is for the constitutional experts involved in promulgating the said “Declarations” to answer and explain. For myself, I would have preferred to the course of taking recourse to “amendment route” so as to avoid the controversy of legality or constitutionality of the “Declarations” vis-à-vis the 2047 Constitution. I can speak only in terms of my professional wisdom and accountability. So far as the political wisdom and political responsibility of the HoR is concerned, it is for the political institutions and political leaders to speak and defend.
In view of the supra-constitutional status and nature of the HoR Declarations 2063, where does the Supreme Court stand now?
With the promulgation and enforcement of the said “Declarations” Supreme Court’s power to scrutiny and declare, any legislative enactments and constitutional amendments made by the HoR under the provisions of the 2047 Constitution, null and void, would vanish. In this respect and context the Supreme Court will no more be in a position to exercise its extraordinary power of judicial review and, as such, lose its Supreme authority. This power would be exercised by the HoR through its Special Committee (a sort of Supreme Court of Parliament?). This would amount to a “political review” of constitutional provisions rather than “judicial review”. To that extent, the role and power of the Supreme Court shall be curtailed and limited. What is not yet discernible and clear as of now, is that what model of Government - Parliamentary or Presidential or mixed – Nepal would opt for future. Nobody is in a position to guess or discuss about this. This is a very-very unfortunate situation in that we are made to face the unexpected challenge of political and constitutional instability and uncertainty at the same time. Sooner we decide the better. In my view, it would not be sufficient to say that it will be the task and responsibility of the yet to be constituted “Constituent Assembly.”
“Proclamations, By Themselves, Cannot Be Obligatory”-- MOTIKAJI STHAPIT
In a long conversation, senior advocate MOTIKAJI STHAPIT, 78, - a media-shy lawyer of long standing - has come out with substance in these following words on present constitutional problems. Senior advocate Sthapit - who had been appointed as Attorney General by three consecutive prime ministers Krishna Prasad Bhattarai, Girija Prasad Koirala and Sher Bahadur Deuba, has many things to share with the people. Introvert and studious, Sthapit spoke to KESHAB POUDEL on various constitutional issues. Excerpts:
How do you explain the present situation?
I don’t know how to express my ideas, which I have at present. The present problem of the country is to carry on state affairs smoothly and peacefully.
What are the challenges now?
In such a state of affairs how to settle the constitutional problems, which have been so much confusing due to some actions by political actors. This is the main challenge.
What are the ways to solve the present political problems?
They had to move ahead with their declared objective, which was to restore the House of Representatives and activate the Constitution by ending King’s direct rule. However, the way members of House of Representatives are conducting the things now show that they are completely in confusion. They themselves are making the situation complicated and confusing.
What did they do wrong?
They have lost the sight of their objective, which was the reinstatement of the parliament thereby going for the Constituent Assembly (CA). Their declared objective was so simple and straightforward.
How do you see the declaration of HoR?
The proclamation of HoR - which was the expression of the political proclamation- cannot have binding force unless the directives are incorporated in the constitution. Thus, without inserting the directives in the constitution, the directives by themselves cannot be obligatory to any functionaries of the state.
When did the constitutional crisis begin?
The present constitutional confusion appeared following the political proclamation of HoR. The House was reinstated according to the demand of People’s Movement. The objective of the movement was to reactivate the constitution and to go for Constituent Assembly.
What is the status of the declaration?
The proclamation of HoR, itself, is not a constitution. As such, it has no binding force so it cannot compel anybody to abide by it.
How do you see the present democratic process?
We were slowly and gradually in the process of evolving democratic discipline, values and cultures and rule of law but the actions following October 4, 2002 destroyed all our efforts to build democratic institutions. As a result, democratic moralities and discipline are weakening.
