There exists much confusion about whether the non-suspended fundamental rights are enforceable, though the Supreme Court has been rejecting all petitions seeking

enforcement of these rights. The confusion has increased further after Pawan Kumar Ojha, the newly appointed attorney-general, expressed the view on Tuesday that the Supreme Court should accept writ petitions regarding these non-suspended rights.

Since the Royal proclamation, the apex court has been accepting only the habeas corpus petitions, which the proclamation specifically says is not suspended. The confusion arose because the proclamation suspended Article 23, which guarantees the right to constitutional remedy regarding the fundamental rights provided under Articles 11 to 23.

But King Gyanendra, while declaring the state of emergency at the same time, suspended only these fundamental rights of the citizens — the freedom of opinion and expression, freedom to assemble peacefully and without arms, freedom to form unions and associations, press and publication rights regarding pre-censorship, right against preventive detention, right to information, right to property, right to privacy, and right to constitutional remedy through writ jurisdiction (except habeas corpus). But the same declaration specified that the following fundamental rights are still operative — the right to equality, right against capital punishment, right against confiscation of any printing press, right against the cancellation of the registration of any newspaper, right regarding criminal justice, cultural and educational right, right to religion, right against exploitation, right against exile, right to remedy under habeas corpus writs.

The Supreme Court, as the sole interpreter of the Constitution, is supposed to remove the confusion. Even after three weeks of the declaration, the failure to do so means that the people are being deprived of their fundamental rights. Then there is nowhere else people can turn to for justice. Indeed, the Supreme Court had ended the confusion three years ago when a five-member bench ruled that those fundamental rights not suspended are enforceable through petitions made under Article 88 (1) and (2). Unless the court reviews its own judgement and decides otherwise, the precedent should apply, otherwise it will create a wrong public impression of the Supreme Court itself. Earlier, the Nepal Bar Association had urged Chief Justice Hari Prasad Sharma and other senior justices to accept the petitions regarding the non-suspended rights.