Himalayan News Service

Kathmandu, March 2:

Amid confusion in the Supreme Court over whether or not to provide the right to remedy regarding non-suspended fundamental rights, former Chief Justice Bishwo Nath Upadhayaya who chaired the commission that drafted the 1990 Constitution today urged for providing the right to remedy of suspended rights also.

“The apex court has the right to implement remedy even for suspended rights if the authorities acted with bias, malice and procedural errors,” Upadhayaya said, while speaking at a programme on Role of Judiciary During Emergency organised by the Nepal Bar Association’s Human Rights and People’s Concern Committee.

Upadhayaya added the apex court has authority to provide remedy under Article 88(1) and (2) for implementation of non-suspended rights when Article 23 is suspended.

“We are ready to accept the state of emergency though it was not imposed at the advice of the Prime Minister, but people have the right to exercise the right to remedy,” he added.

He opined that the Supreme Court has authority to pass orders to the cabinet even if it is presided over by the King. “The Court cannot pass any order to the King personally, but it can to the government,” he added. Upadhayaya also held that the apex court has the authority to review the legitimacy of the recently-formed Corruption Control Royal Commission.

Another retired Supreme Court judge, Justice Laxman Prasad Aryal, said that the rights of the apex court and other independent bodies are not curtailed by the emergency order. He, another architect of the existing constitution, accused the apex court and other constitutional bodies of being fearful without any reason.

Yet another architect of the constitution and former Speaker of the House of Representatives, Daman Nath Dhungana, urged authorities to respect

the rights of the people by revoking the emergency order. “In the absence of a House of Representatives, it was more fit to declare the emergency by taking the advice of the Supreme Court,” he added.