KATHMANDU, JUN 08 – As political parties mulling over reinstatement of the disbanded Constituent Assembly (CA) as a possible way out of the current political impasse, the judicial fraternity remains divided over such an idea.
While some said that the CA resurrection would be legal as the Interim Constitution does not imagine a situation where a vacuum is created in the absence of the assembly or the Legislature-Pareliament, others argued that the CA’s term has expired as per the verdict of the Supreme Court and that it cannot be brought back to life. Those pushing for the CA’s revival also argued that it is more a political issue than a constitutional one and, therefore, the parties should move ahead without any hesitation. The Supreme Court, they said, will not “intervene” if the parties try to fix the problem amicably and in good faith.
Some, however, argued that there is a clear constitutional ground for the CA revival and even if it is interpreted as a “constitutional issue” and is likely to come under judicial review, the parties need not fear.
Former Justice of the Supreme Court Balram KC said the move to revive the CA will be legal as the Interim Constitution does not imagine a vacuum.
KC argued that the doctrine of necessity can be evoked to justify the revival. Citing provisions in the constitutions of South Africa and Namibia, KC said the parliament (CA also functioned as the parliament) can continue to function even if it is dissolved, until a successful election.
On fresh elections, KC said they can be held even after the CA is revived.
However, constitutional lawyer Bipin Adhikari dismissed the claim that the CA can be revived as per the Interim Constitution. “Such arguments don’t hold ground given that the CA expired as per the apex court verdict”. He said that the chapter concerning the CA in the Interim Constitution has come to an end after the term of the CA expired.
He clarified that any move to revive the CA would be unconstitutional and seriously undermine the independence of the judiciary, as the apex court had already termed the last extension of CA as “final”.
Adhikari also said that even the President does not have any right to amend the constitution.
Another constitutional lawyer Purnaman Shakya also said the CA cannot be revived constitutionally. “If the parties want to find a solution, it has to happen outside the constitutional framework,” he said. Shakya added that the CA can be given a fresh lease of life on the basis of political consensus.
He, however, also added that in such a situation, it would mean that the political forces have not respected the apex court verdict.Pranab Kharel ekantipur