Way to go, Your Honour
- NOTE OF DISSENT
The Supreme Court last week rejected the petitions filed by the speaker of the Constituent Assembly (CA) and the government seeking a review of the court’s ruling regarding the extension of the CA’s tenure. The apex court had categorically ruled in response to a petition filed earlier that the CA could extend its own life just once, and that this would be the last time that it could legally do so. The CA has already amended the constitution giving it an extension of six months and, if the apex court ruling has any value for the CA and the government, no further lengthening would be possible.
And this is where both the speaker representing the CA and the prime minister representing the government have objections. They consider it, rightly to a certain extent, the prerogative of the elected representatives to make laws and amend the constitution. And extending the CA’s life through an amendment to the constitution is the task of the CA, and the court has no right to say anything in the matter. This sort of argument, at least, is what might have driven the CA and the government to seek a review of the apex court’s earlier ruling. The two state organs seem to feel that the court was being too pro-active and treading on ground where it has no jurisdiction.
Conflict on such issues between the judiciary and the legislature or the government is not a new thing, and it has taken place around the globe. The legislature elected by the people is considered to be sovereign and its legislation (or its power to amend the constitution) cannot be downplayed. These legislations are laws which the court interprets and upholds. The legislature can, arguably, make any laws it wants. It can make laws that go against basic human rights; and it can make laws forgiving all illegal activities committed during the 10-year conflict that cost the country 15,000 lives and resulted in many more thousands injured. It can make laws to take over all private property. And the CA can go on extending its tenure for 10s, 100s and 1,000s of years by amending the constitution, albeit an interim one. And who or what is the court to interfere in the CA’s sovereign rights?
In Nepal’s context, the government and the CA might have felt that the court’s ruling limiting the CA’s power to extend its own tenure is an unnecessary interference by the court in legislative affairs. But in Nepal, things are not run on principles. Imagine, a political party that yesterday resorted to seizing and looting private property in the name of “people’s war” has today agreed, if media reports are to be believed, that an individual, under the new dispensation, can hold unlimited wealth and land.
In Nepal, political parties that promised a constitution within two years after the first meeting of the CA have been able to deliver virtually nothing in the past three and a half years. The CA representatives who claim to represent the people seem to be virtually blind to the hardships the people are being put to because of their inaction on the constitution front.
The power grab scene one has witnessed ever since the CA elections has been the main stumbling block to constitution writing. The major political parties seem to be bent on putting the cart before the horse — emphasising that one party must be in the seat of power if the constitution writing process is to move forward. This still continues; and the CA representatives, despite their being sovereign representatives of the people, act no more than a collective rubber stamp of their respective political parties, voting the way they are told to and never publicly demanding that their respective parties do more towards meeting the goals set by the constitution.
(No dissenting voice might have arisen because if one is a cadre of a political party, one stands to gain a lot. For instance, vehicles brought in illegally into the country are legalised with just a stroke of a government pen and without having to pay any government duties, payable by ordinary citizens. And the government itself is more intent on changing the names of streets or removing statues than in really bringing relief and joy to the people or in giving the necessary momentum to constitution writing.)
Under the circumstances, it is only to be expected that there is strong support and equally strong opposition to the Supreme Court’s ruling on the CA’s term extension. When there is a failure on the part of the government and the legislature to deliver, judicial activism becomes necessary; and this might include stepping on other people’s toes. The court in a recent ruling has asked the government to make fuel, including petrol and diesel, easily available. This is the task of the executive branch of the state, yet the court had to step in to prevent inconvenience to the people.
The government has not been able to enforce acts that make it illegal for those working in essential services to go on strike or conduct other similar disruptive activities that prevent the people from getting their basic and essential goods and services. We cannot — and should not — blame it all on the so-called transitional period and allow all kinds of unwanted and unneeded activities to take place in the country.
Yet, this is exactly what is happening. And the government’s actions include removing king Tribhuvan’s bust from Sahid Gate and installing it at the ill-maintained Narayanhiti Palace Museum, perhaps making the necessary initial preparations to fill Tundikhel with the busts of 8,000 plus martyrs! Given the manner in which the country and the people passed the past four years after the CA elections, it is not surprising that many feel that the opposition of the CA and the government to the Supreme Court’s ruling is more opportunistic in the name of principles than anything else.
shyam k.c.
Posted on: 2012-01-06 09:40
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