The apex court passed the order without fully comprehending the power of the Parliament and the restraint the court should maintain
KATHMANDU, AUGUST 25
The Nepali Congress and the CPN-UML have taken exception to the interim order issued by the five-member constitutional bench of the Supreme Court led by Chief Justice Bishwombhar Prasad Shrestha on Wednesday against the federal and provincial governments for allocating money under the constituency infrastructure development programme, also known as pork-barrel fund. The SC observed that allocation of the fund provisioned under point number 445 of the new fiscal budget was against the doctrine of separation of powers.
Reading out the budget in the House of Representatives, Finance Minister Prakash Sharan Mahat had said: I propose an allocation of Rs 50 million for each electoral constituency for the Constituency Infrastructure Development Programme to address the local development needs as anticipated by the people through their representatives. Under this programme, a minimum of Rs 10 million will be allocated to each project across various sectors, which include road construction, irrigation, water supply, education, health, tourism and sports. The budget has allocated Rs 8.25 billion for this programme.
The apex court observed that the executive powers vested in the federal and provincial council of ministers and the legislatures at both the federal and provincial level basically had lawmaking jobs. It does not appear that the federal and provincial members have any executive power and therefore, if the lawmakers are given the power to spend money under the CIDP not listed by the federal and provincial planning commissions or the line ministry, that could create a situation of conflict of interests.
The court said that the CIDP adopted a differential approach vis-Ã -vis National Assembly members and lawmakers elected under the proportional representation system.
NC Chief Whip Ramesh Lekhak and CPN-UML Whip Mahesh Kumar Bartaula termed the SC order judicial activism and interference in the Parliament's prerogative.
Lekhak said the SC order was against the principle of separation of powers. He said the Parliament had the prerogative to levy taxes, allocate resources, enact laws and conduct oversight of all organs, and attacking that prerogative was an attack on the House itself.
"Under the CIDP, a lawmaker can only choose the wards where the fund could be used for development work. Every aspect of the development work is carried out by the executive branch of the government, so where does the question of lawmakers exercising executive power arise?" he wondered.
Lekhak said that development programmes were part of the finance bill passed by the Parliament, and the legislature's power over the finance bill was such that even the President could not return the bill for reconsideration. He said lawmakers were elected by the sovereign people, and lawmakers' power should not be curtailed by the court.
"If the lawmakers err, the people will punish them," he argued.
Terming the SC order judicial activism, Lekhak said the SC passed the order without fully comprehending the power of the Parliament and the restraint that the court should maintain. "What will happen if the Parliament starts commenting on each verdict of the Supreme Court?" he wondered.
Lekhak said some might cheer the court's activism, but such unwise orders of the SC would ultimately weaken the parliamentary system and democracy. He argued that the court should not resort to activism on any issue.
"The court should show where the Parliament's policy contradicts the constitution," he added.
Lekhak said fund allocated under the parliamentary election infrastructure development programme did not violate any article of the constitution.
UML Whip Mahesh Kumar Bartaula said that the CIDP was a part of the finance bill over which the Parliament had the prerogative, and the court should not infringe upon such a prerogative. He said the development programme would be carried out by the executive branch, and the lawmakers would only select areas where the development programmes would be required. "This programme is aimed at serving those people whose development needs might have been overlooked by the government," Bartaula added.
Senior Advocate Radhe Shyam Adhikari said that the constituency development fund was unpopular among the people, and the government would have done better avoiding the programme altogether. He, however, said the SC showed judicial activism by staying the programme.
Other members of the constitutional bench comprise justices Ishwar Prasad Khatiwada, Ananda Mohan Bhattarai, Anil Kumar Sinha and Prakash Singh Raut.
A version of this article appears in the print on August 26, 2023, of The Himalayan Times.
