Nepal | April 04, 2020

Apex court stays implementation of 16-point pact

Ram Kumar Kamat
Supreme Court of Nepal. Photo: THT/File

Supreme Court of Nepal. Photo: THT/File

KATHMANDU: The Supreme Court today issued an interim order against the implementation of the recently-signed 16-point agreement among the four major parties represented in the Constituent Assembly.

This means that the federalism issues have to be resolved by the CA and their resolution cannot be left for the transformed Parliament as stated in the 16-point agreement signed by the Nepali Congress, the CPN-UML, Unified CPN-Maoist and Madhesi Janaadhikar Forum-Democratic on June 8.

A single bench of Justice Girish Chandra Lal issued the order in a case filed by Nepal’s former ambassador to Denmark Vijay Kant Karna and Madhesi activist Rita Shah against the Office of the Prime Minister and Council of Ministers, CA chair and chiefs of the four parties.

The bench observed that the promulgation of a new constitution without names and boundaries of the states will violate Articles 138 and 82 of the Interim Constitution. “If attempts are made to frame the new constitution by bypassing the existing constitutional provisions, they could make the new constitution controversial, pose threat to peace and order and can create fear of another conflict,” the bench observed. “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.”

The apex court observed that as per Article 82 of the Interim Constitution, the CA would cease to exist after the new constitution is promulgated and dissolution of CA without it resolving the federalism issues would be against the provisions of the Interim Constitution.

Advocate Dipendra Jha pleaded on behalf of the petitioners that the CA was mandated to resolve constitutional issues, including federalism issues, and if such issues were left for transformed Parliament, it would be a violation of the Preamble and Article 138 of the Interim Constitution. Today’s order would impede the major parties’ bid to promulgate the new constitution through a fast-track process.

In the June 8 deal, the four parties had agreed to form eight states in the federal model, without naming them or delineating their borders.

The 16-point pact states that a Federal Commission would delineate the states and the two-third majority of the transformed Parliament would endorse the commission’s report.

Meanwhile, Vice President of the Nepal Bar Association Tika Ram Bhattarai said the 16-point agreement was purely a political agreement and it would have been better had the SC not interfered in the matter. He, however, said the defendants could now seek to vacate today’s interim order but the hearing on such an application could take at least 15 days.

Agreement violates Articles of Interim Constitution: SC

•    Article 138 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 that 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 centre and allocation of means, resources and powers shall be determined by the Constituent Assembly
•    Article 138 (3) states that 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
•    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

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