NATIONAL 1 (Spotlight Weekly)]

Royal Option

The Supreme Court declares the citizenship amendment bill null and void

By KESHAB POUDEL

After an exhaustive hearing last month, a seven-member full bench of the Supreme Court this week ruled that the sixth Citizenship Act amendment Bill was against the spirit of the constitution and declared it null and void. The next question: how can the process of declaring the bill dead formally begin?

While declaring the bill null and void, the apex court also submitted to the constitutional monarch the option of returning it to a joint session of the parliament with a Royal message.

Prominent constitutional lawyers also see this course as the best available option to the king since the bill originated in the House of Representatives.

Supreme Court : Gives guideline

Under Article 54 (3) of the constitution, His Majesty may send messages to either or both Houses of Parliament. The House receiving such message shall, as early as possible, consider the matter mentioned in the message and submit its opinion to His Majesty.

According to Article 71, a bill shall become an act after His Majesty grants his assent to it. If the King sees the need for further national debate on the issue, he must send it the house.

The court has mentioned Article 27, which lays down the provision regarding the role of the constitutional monarch. Article 27 (3) of the constitution recognizes the role of His Majesty to preserve and protect the constitution by keeping in view the best interests and welfare of the people of Nepal. The court also pointed to Article 43 (2) through which the King may make recommendations or admonitions to the Council of Ministers on matters of national importance.

This was fourth time in the last 10 years that the King sought the opinion of the Supreme Court on a constitutional dispute. From the Dasdhunga Commission to the recommendation for the dissolution of House of Representatives in 1997 and the sixth Citizenship Amendment Act, the justices of apex court have experimented with the process several times.

Although the King does not have to follow the court's opinion as it is not legally binding, it would be inconsistent with the principles of a democratic set up to ignore it.

Although a section of constitutional lawyers affiliated with the ruling Nepali Congress party criticized the opinion of the court, arguing that it expanded the authority of the King, the justices seemed to have incorporated in their opinion the range of options available to the constitutional monarch.

The opinion of the court has sparked a new round of controversy over whether the court can declare a bill null and void before it takes the form of an act. "The court cannot declare a bill null and void until it receives royal assent," said senior advocate and Congress sympathizer Mukunda Regmi.

Article 8 and 9 have laid down certain criteria to acquire Nepalese citizenship. Article 9 (1) of the constitution says a person who is born after the commencement of this constitution and whose father is a citizen of Nepal at the birth of the child shall be a citizen of Nepal by decent.

One of the clauses of the sixth Citizenship Act amendment bill is to provide citizenship for children on the basis of the citizenship of his or her mother.

The amendment bill was first passed unanimously by the House of Representatives but the Upper House later refused to hold a debate on it.

The Nepali Congress through its majority in the House of Representatives passed the bill a second time. As the legislation was introduced as a finance bill, the palace was expected to approve it.

However, after the bill triggered a national controversy, the King, under Article 88 (5), sent it to the apex court seeking its opinion on whether the measure was in accordance with Articles 8 and 9 of the Constitution of Kingdom of Nepal 1990.

According to the 88 (5) of the constitution, if His Majesty wishes to have an opinion of the Supreme Court on any complicated legal question of intrepretation of this constitution or of any other law, it shall, upon consideration on the question, report his Majesty its opinion thereon.

The constitution, too, has many mechanisms to settle disputes in a democratic manner. In the last one decade, the constitution has exercised its judgment on various provisions.

By forwarding its lucid opinion to the King on the citizenship issue, the Supreme Court has once again demonstrated its maturity in discussing constitutional issues.