The Supreme Court approved dissolution without possibility of holding a fair election due to


We thought our Constitution of 1991 was the best. At least some of us believed so. But it did not turn out like that. Article 127 has put it in a state of coma. There is no sign of the Constitution being revived in its full health. Even if it does, there is no hope of addressing the ailments it is suffering from. Naturally it is deemed necessary to look for alternatives in the name of reforms, rewriting or replacing it.

Among many other reasons of failure, one thing that really made our so-called ideal constitution dysfunctional was its inability to reflect the changing political realities. Political experts have said that the Constitution was a compromise outcome of the three political forces incumbent in 1990 — the Nepali Congress, the communists and the King. Today, all admit there are still three forces with a little change in the political scenario. The King continues to remain a force on the one hand along with the Nepali Congress, a host of communist parties and other small ones combined together, on the other. The new force that has emerged during this period of 14 years of this Constitution is the Maoists.

How to make a constitution responsive to the people articulated by newly emerging political forces without destroying the Constitution is a relevant question and a big challenge. One reason behind its inability to cope with the new situations is over- concentration of constitutional power in the judiciary.

Our Constitution has vested the power of constitutional review in the Supreme Court. It means the apex court is the last authority in interpreting the letter and spirit of the Constitution in case of dispute. We have seen how the first dissolution of parliament by Prime Minister G P Koirala was endorsed by the Supreme Court. We also saw how the second dissolution of parliament by Prime Minister Man Mohan Adhikari was quashed by the Supreme Court. We again witnessed how the third dissolution of parliament by Prime Minister Deuba was sanctified by the same Supreme Court.

The Supreme Court has always an unassailable reason to justify its verdict although it might not correctly reflect the political reality of the day, let alone the mood and wishes of the people. For example, the first dissolution was hastened by internal crisis in the Nepali Congress. The people never approved it nor did the political situation demand it. Nevertheless, the Supreme Court endorsed simply because the action was constitutional as the prime minister recommending it commanded majority in the parliament. The same case was repeated in the last dissolution of parliament enforced by Prime Minister Sher Bahadur Deuba. The Supreme Court approved it although there was no possibility of holding a fair election in the country due to widespread violence. Legally speaking, the verdict was right but politically it did not reflect the reality of the day.

In order to redress this weakness, we should look for a solution to make the Constitution flexible and responsive to the popular wishes articulated in the changing political scenario. A very sensible solution can be derived from the Cambodian experience. The Cambodian constitution provides for a Constitutional Council vested with the power to safeguard respect for the constitution, to interpret the constitution and the laws passed by the parliament. It also has the right to examine and decide on the contested cases involving the election of the members of the parliament. Let us see how it works.

According to the Cambodian constitution, the Constitutional Council consists of nine members with a nine-year mandate. One third of the members of the Council are replaced every three years. Of the nine members, three are appointed by the king, the other three by the parliament and the remaining three are nominated by the judiciary known as the Supreme Council of the Magistracy. The chairman of the council, who has a deciding vote in case of a tie, is elected by the members of the council itself. The members of the Constitutional Council are selected from among the dignitaries with high educational qualification in law, administration, diplomacy or economics and with considerable work experience. The constitution has made necessary provision to avoid conflict of interest and to maintain it as an impartial and dignified body.

The Constitutional Council has wide-ranging powers. The constitution provides that the king, the prime minister, the president of the assembly, or one tenth of the assembly members need to submit the draft bills to the council for examination before "promulgation". Even the parliamentary rules of procedure and organisational laws need to be forwarded to the council before implementation. However, there is a thirty-day limit on the council to consider and decide whether these matters are constitutional.

Even after a law is passed and announced, the Constitutional Council can review it. The king, the prime minister, the president of the assembly or one tenth of the assembly members or the court can ask the council to examine the constitutionality of the laws. The Cambodian citizens have also the right to appeal against the constitutionality of laws.

The constitution provides that the decision of the Constitutional Council is final and no laws of the parliament and decision of the government declared as unconstitutional by this council shall be promulgated or implemented.

Shrestha is a freelance journalist