Sep 15, 2006

Nobody knows whether the present constitution is alive or not in the present context

By KESHAB POUDEL

Although more than a couple of months have already been passed since a group of lawyers have filed a petition in the Apex Court challenging the constitutional status of the Declaration of House of Representatives, the court is yet to begin full hearing on it.

HoR : Assertive Mode

From its two days of initial hearing, the judges - who have already established the supremacy of constitution through its various interpretations - seem to be facing some kind of uneasiness to deal with the issue.

Nobody knows the fate of petition - which have raised the fundamental issues of Constitution - pending in the Supreme Court since many months. Till now not a full length hearing has been done for it. The apex court  seems to be at great difficulty for obvious reasons to take up such issue and give a decisive opinion.

This is not for the first time when the judges of court are facing such difficulty. Following the royal takeover and formation of High Level Anti-Corruption Commission by the King, then judges had similar difficulty. Though the new Loktantra has replaced the older authoritarian regime of the King, the new regime under Loktantra is threatening the judges in similar manner. The debate of reappointment of judges has already made the tenure and position of judges uncertain.

Even as the government and the parliament considers the constitution alive as long as they are allowed to work, nobody is following the letter and spirit of the constitution. "Till it is abrogated by another one by Constituent Assembly, the present constitution cannot be taken as non-existent or to be in suspended animation," said a prominent constitutional lawyer. "It was quite logical and plausible also to use this constitution as an interim one till the CA comes out with a complete constitution."

Although an effort has been made to write an interim constitution to replace the present one, it turned not only a futile exercise but ridiculous too. Some members of the drafting committee publicly acknowledged that working for interim constitution resulted in an absurd joke to the country. None of the draftsmen withdrew themselves from the drafting committee but no one is cable of explaining what they did or what they did not do.

"Persons in the legal profession are not so incapable in this country to make themselves as laughing stock permanently in the legal history of Nepal . They were in some extent incapable of assessing the political situation of the country and making the constitution as a document of existing power balance of the country. But, this lost opportunity was not so serious as we already have a constitution reflecting the mandate of the Janaandolan I. Let wisdom prevail in the political forces and the country accept this constitution completely and faithfully in letter and spirit till the CA comes out with an agreed constitution," said the lawyer.

Whither Constitution

Although majority of lawyers said there exists the constitution, following the declaration by the House of Representatives, the Constitution of Kingdom of Nepal 1990 has been rendered as virtually redundant.

"Yes constitution is there. If nobody follows the letter and spirit of the constitution, what is it sense. In the name of people's power, the persons in power are doing whatever they want," said advocate Bal Krishna Neupane. “The politicians with vested interest of particular country made some articles related to citizenship and sharing water resources defunct."

SC : Slow Hearing

Politicians are ruling the country citing the mandate of Janandolan II. "What we have been doing is in accordance with the mandate of Jananodlan II," said speaker of House of Representatives Subhas Chandra Nembang.

After April 26, the present phase of politics is usually claimed as being guided by Jananodlan II by people, in general, and particularly the persons in power. The first Janandolan which was held in 1990 - brought into operation the Constitution of Kingdom of Nepal 1990 and none of the political parties of this Jananodlan has denounced  the Constitution of Kingdom of Nepal 1990 yet.

"None of the agreed documents of statements between leading seven parties and Maoist have denounced  the previous Janandolan  as well as the constitution which were the pride outcome of that. If one goes through all the joint deliberations between the two groups of political parties, the thrust was to activate the present constitution in full terms with its letter and spirit.  The six point declarations of the seven parties for launching Janandolan  II had specifically declared that the constitution would be fully implemented after the restoration of the parliament," said the political analyst.

Present constitution was not given by the King but was promulgated following the successful People's Movement. This constitution cannot be abrogated by the King or any other political forces. This might be the reason political parties had agreed to go for CA for a new constitution and that way they had agreed for a superior and more powerful body than the parliament to decide the fate of the present constitution.

The agitation was concluded by a declaration of the King conceding to the basic demands of the SPA. In the declaration, it was explicitly mentioned that the CA would decide the future form of governance. But, soon after the restoration of HoR its leaders completely ignored the body of parliament, which consists three major constituents i.e., the House of Representatives, the Upper House and the King. All these constituents in a combined form make a parliament.

The fresh violation of the constitution was made by unilateral functioning of the HoR, The next step of violation was to issue a declaration of a HoR in which it declared itself as the sole authority to function as a supreme legislature.

In all its nine point declarations, basic provisions of the constitution has been violated.  In its clause (9) c, it declares that any provision of the constitution of 1990 as well as the law of the land shall be null and void to the extent of contradiction with the declaration of the HoR. Since then series of actions have come each day violating the provisions of the present constitution.

No legal and credible opinion has come to the public notice justifying the actions of the HoR which are in contradiction with the constitution. No straight and clear answer is given to the press or public by persons who are in the positions of decision making.

People are completely bereft of the legal knowledge they had till now with them. The present constitution either exist or it does not exist could have been a straight way opinion.

Not a single precedent of any constitutional order is known in this country in which a declaration of the HoR assumes supremacy over the prevailing constitution and law. The Article 1 of the present constitution explicitly says that this is the fundamental law of the land and any law in contravention to it shall be null and void.

According to article 1 (1) of the constitution, Constitution is the Fundamental Law: This constitution is the fundamental law of Nepal and all laws inconsistence with it shall, to the extent of such inconsistency, be void.

But the declaration of the HoR has issued an opposite clause stating that the provisions of the constitution shall be null and void to the extent of its contradiction with HoR.

"The declaration of HoR does not claim to be the law or fundamental law of the country. It is just a political declaration," said the analyst.

Whatever one says, nobody knows whether the constitution of Kingdom of Nepal 1990 really exists or not at this juncture. Although the 1990 Constitution gives the right to interpret the constitution to the Supreme Court, it is yet to show courage to speak about the status of the supreme law of the land.