National 5 (Spotlight Weekly)

Stepping Into Legislature's Shoes?

The Supreme Court orders the government to amend the Civil Code, recognizing rape within marriage

By KESHAB POUDEL

This is not the first time the Supreme Court has encroached upon the law-making jurisdiction of parliament. Although the apex court's order to amend the Civil Code Act to recognize rape within marriage was routed through the government, it directly intruded into the preserve of parliament. Moreover, the decision defies legal logic and ignores common-law precedent.

In a case filed by Mira Dhungana, the Supreme Court declared that engagement in sexual activity against the wishes of the wife is rape. "Sex cannot be performed without the consent of wife. If a husband does so without her consent, it is regarded as rape," declared Justice Laxman Prasad Aryal.

The decision taken by the three-member Supreme Court bench goes against the principle of the separation of powers. The apex court cannot deliver mandatory orders to the government to formulate particular acts containing particular provisions. Moreover, the government cannot force parliament to make the laws its wants.

According to the constitution, law-making is the prerogative of the legislature. The apex court can interpret acts or declare them null and void if it finds that they violate the basic spirit of the constitution.

For its part, the legislature can reject the amendment bill presented by the executive as directed by the apex court. If that situation arises, what will happen next? It seems nobody cares about their limitations and constitutional rights in making decisions.

Aryal's last decision declaring the special development fund given to MPs as illegal sparked a major controversy in parliament. Some MPs even demanded an impeachment motion against Aryal, who was one of the members of the constitution drafting commission.

If parliament asks the Supreme Court to take decisions in accordance with its demand, what will the judiciary do. "This is a very bad precedent set by the apex court. Nobody seems to be concerned about their constitutional rights and prerogatives," says a constitutional lawyer.

The special bench headed by Aryal consisted of senior judges Kedar Nath Upadhyaya and Krishna Kumar Verma. As the petitioner demanded, the bench also issued an order to remove the clause relating to rape.

In the last few years, the judiciary has issued some mandatory orders to the executive to amend the law and enact new ones. Following the decision of the court, the government tabled the Civil Code amendment bill granting equal property rights to women.

Constitutional directives cannot be enforced, as they are not justifiable. "The constitutional directives as enshrined in Chapter 4 of the constitution are far more superior to any directives or orders issued by any institution, which is just a creature of the creator," says former attorney-general Badri Bahadur Karki. "Every student of constitutional law knows that constitutional directives are not justifiable and cannot be enforced even by the Supreme Court's order. How, then, can the directive orders frequently enunciated by the honorable Supreme Court be justifiable and be enforced?"

The Supreme Court cannot assume and replace the wisdom and function constitutionally entrusted and obligated to parliament. To do so would amount to a clear encroachment and usurpation of power.

Every department and institution, including the Supreme Court, created by and subjected under the constitution is supposed to act only under the provisions of the supreme law of the land.