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SUPREME COURT |
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SUPREME COURT |
Gaining Maturity The apex court has
demonstrated its institutional capability to deal with knotty constitutional problems By KESHAB POUDEL The Supreme Court has once again proved
that it is mature and capable enough to deal with challenges and problems it confronts as
the interpreter of the constitution. After two days of hearing, the country's apex court
clarified the constitutional ambiguity on the role and limitations of the court in an
unusual situation like a state of emergency. The confusion on the authority of the court
to hear and interpret the constitution appeared as soon as the emergency was declared. At
the recommendation of the council of ministers, King Gyanendra ordered a state of
emergency under Article 115 of the Constitution of Kingdom of Nepal 1990 on September 26.
Under Article 115 (8), His Majesty also ordered the suspension of sub-clauses (a), (b),
(d), and (e) of Clause 2 of Article 12, Clause (1) of Article 13(1) and Articles
15,16,17,18, 22 and 23 of the constitution for the duration of the state of emergency. When confusion over the functioning of the
constitution emerged, Chief Justice Keshav Prasad Upadhyaya put the issue in front of the
full bench. After a two-day hearing, the court declared that it could exercise its
extraordinary power endowed by the constitution under Article 88. Nepal's Supreme Court made its own
interpretation when a similar situation occurred in 1960, when a state of emergency was
imposed. Under the then constitution, the Supreme Court gave remedy to the press though
its extraordinary jurisdiction. "The apex court has finally proved
that it is capable and efficient to deal with any confusion regarding its
jurisdiction," said a senior lawyer. "This is not first time that the court has
exercised its extraordinary power. In fact, it has a long practice of doing it," he
added.
Appreciating the emergency and giving
clear interpretation to the constitutional provision defining the ambit of the declaration
of the state of emergency, the court finally decided to hear and give remedy on all
pending cases. This decision has come as a welcome step for all petitioners waiting for
justice. The controversy arose when a section of
lawyers argued that the court did not have the jurisdiction to hear pending and other
cases as long as the state of emergency was in force. Opinion was divided in the apex
court, which consists of 18 judges, as well. Thanks to the initiative of Chief Justice
Upadhyaya, a full bench interpreted the extraordinary power of the apex court. As the
Supreme Court retains its extraordinary power intact, no one questions its jurisdiction to
hear pending and other cases. Even Attorney-General Badri Bahadur Karki
defended the apex court's ruling. "The executive has no intention to suspend the
proceedings on pending cases in the court. The declaration of emergency has not suspended
pending cases. The court is free to deal with those cases. When the government feels it
necessary to suspend any rights involved in the pending cases, it has to issue another
order to that effect. Until this is done, the court's jurisdiction over pending cases
could not be assumed or presumed to have been suspended," the attorney-general said. The full bench, comprising Chief Justice
Upadhyaya, judges Laxman P. Aryal, Kedar Nath Upadhyaya, Krishna Jung Rayamajhi and
Govinda Bahadur Shrestha, declared that the court can hear pending and other cases by
using its extraordinary power. The interpretation of court brought a sigh
of relief by retaining the rights of the individual even during extraordinary situations.
The Supreme Court's decision has demonstrated that it has the ability to exercise its full
power to protect the constitution. |
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editor: spotligh@mos.com.np |
