External Affairs

Nepal SC Stays Federalism Deal Reached by Political Parties

Nepal’s Supreme Court has stayed implementation of the 16-point agreement reached by the country’s main political parties earlier this month on the grounds that the postponement of the creation of federal units that the deal involves would violate the interim constitution.

As part of a compromise deal on June 8, the Nepali Congress, Communist Party of Nepal (Unified Marxists-Leninists), United Communist Party of Nepal (Maoist)  and the Madhesi Front agreed to create a federal system for the country with eight provinces whose specifics would be handled by another body after the constitution is finalised.

In an interim order issued on Friday, the Nepal Supreme Court said such a step would go against at least three clauses of the interim constitution, especially Article 138 (3) which states,

“The final settlement on the matters related to the restructuring of the State and the form of federal system of governance shall be as determined by the Constituent Assembly.”

The court said that when this provision was taken in the context of Article 82, which stipulates that the business of the Constituent Assembly shall end on the day of the commencement of the constitution passed by the Constituent Assembly, “it is clear that the dissolution of the CA before it restructures the provinces in a forward-looking manner including settling of the issues such as delineation of the pradeshes, fixing their number, names and structure will be against the constitutional provisions.”

The court was acting on the basis of a petition filed by a Madhesi activist.

Although the June 8 deal was backed by the Madhesi front, at least four Terai-based Madhesi parties – the Sadbhavna Party, the Terai Madhes Democratic Party, the Madhesi Janadhikar Forum (Nepal) and the Terai Madhes Sadbhavna Party have denounced the agreement as a betrayal of the promise of inclusive federalism.

The following is an English translation of the Nepal Supreme Court’s interim ruling:

The Supreme Court

Single bench of Justice Girish Chandra Lal

An Order

Case: A writ of Certiorari and Mandamus 

Vijay Kant Karma, a resident of Pokhariya ward no.1, recently staying in Kirtipur 1 et al…………………………………………………………….. Applicants
Versus
The Office of Prime Minister and Council of Ministers Singhdurbar, et al……………………………………………………………………………………………… Opponent

In this writ the bench after perusing the case file and hearing the arguments presented by applicants’ lawyers advocate Dipendra Jha, Raman Kumar Karna, Rajesh Ahiraj and Gaurisankar Mahato, orders the staff to present the case to the bench after the notices are legally served along with the copies of this case, to the defendants No 4,5,6,7 and after they furnish their written replies themselves or  through the office of the Attorney General within 15 days from the day this order is issued on how they contest this case and why an order as demanded by the petitioners should not be issued.

Among the major demands of this writ are Parliament and electoral system, governance system, judicial system, citizenship and Madhesi Commission and the court will reach a conclusion after the defendants will submit their written replies on these issues and the court conducts a hearing on that.

As far as the issue of some political parties signing a 16-point agreement in violation of the Interim Constitution is concerned, the preamble of the Interim Constitution states that the Interim Constitution, 2007, drafted on the basis of political consensus, is being promulgated to institutionalise the gains attained through revolution and movement till the time a new constitution is not framed through the Constituent Assembly.

Article 1(1) of the Interim Constitution stipulates that this constitution is the fundamental law of the land and Article 2 of the constitution states that it will be the duty of every individual to uphold this constitution. This constitution a has provisioned that there will be Constituent Assembly, Legislature Parliament, Executive, Judiciary and political parties and there can be no denying that that the state and state established organs should abide by the constitutional law and prevalent laws.

As far as the federalism issues are concerned, Article 138 (1) of the Interim Constitution maintains that progressive restructuring of the state shall be done with inclusive, democratic federal system of governance by doing away with centralised and unitary state so as to end discrimination based on class, caste, language, gender, culture, religion and region.

Article 138 (1a) stipulates Nepal will be restructured in a forward looking manner with inclusive, democratic and federal system of governance in order to end discrimination based on class, caste, language, gender, culture, religion and region by ending the centralized and unitary system. Sub-Article 1 (a) stipulates that recognizing the desire of the indigenous peoples and of the people of backward and other area including Madhesi people towards autonomous provinces Nepal shall be a federal democratic republican state.  Provinces shall be autonomous and vested with full authority.The boundaries, number, names and structures, as well as full details of the lists of autonomous provinces and the center and allocation of means, resources and powers shall be determined by the Constituent Assembly.

Article 138 (2) stipulates that in order to restructure the state as stated in Article 138 (1) and 138 (1a), there shall be constituted a high level commission to make suggestions on the restructuring of the State. The composition, function, duty, power and condition of service of such commission shall be as determined by the Government of Nepal.

Article 138 (3) of the Interim Constitution states, “The final settlement on the matters related to the restructuring of the State and the form of federal system of governance shall be as determined by the Constituent Assembly.” When this thing in analyzed in the context of Article 82 of the Interim Constitution since Article 82 of the Interim Constitution stipulates that the business of the Constituent Assembly shall end on the day of the commencement of the constitution passed by the Constituent Assembly, it is clear that the dissolution of the CA before it restructures the provinces in a forward-looking manner including settling of the issues such as delineation of the Pradeshes, fixing their number, names and structure will be against the constitutional provisions.

If attempts are made to frame the new constitution by bypassing the existing constitutional provisions, the new constitution could be controversial, country’s peace and order could be threatened and doubts about another conflict could be created.

In that case the state can suffer irreparable loss. Therefore the court issues an interim order till another order telling the defendants not to do anything against Articles 1, 82 and 138 of the Interim Constitution.

Justice Girish Chandra Lal

Signature

Date: June 19, 2015.