It may sound strange to any constitutional expert that the Supreme Court has left undecided for a full three years a review petition on the vitally important issue of whether the dissolved House of Representatives can be restored after the promised general elections, the only constitutional reason for the dissolution, could not take place for security reasons. Amid this, new Chief Justice Dilip Kumar Poudel’s pledge to hear this case has raised public expectations.
The dissolved state of the House has given rise to many legal, political and constitutional problems, as the country continues to be ruled by Article 127 and prolonged ordinances, which do not actually capture the letter and spirit of the 1990 Constitution. The new CJ is himself a testimony to this as his appointment has been part of the exercise of Article 127 and has led to doubts among legal experts about the constitutionality of the process of his appointment. That is why, at his first press conference after taking the oath of office, Poudel has had to contend that he has become CJ not through extra-constitutional measures. Such circumstances are hardly helpful to any CJ. Therefore, despite the new CJ’s assertion that the judiciary is independent, most members of the public and many legal experts are questioning it. One major reason is that the SC has shown no sense of its fundamental duty by sleeping on the plea for the reinstatement of the House, which could end the political confrontation between the two constitutional forces, break the constitutional impasse, and even lead to fresh talks with the Maoists. Poudel has promised improvements by unveiling his 11-point action plan for his two-year tenure, such as making the Judicial Council and the Judicial Service Commission effective and implementing the five-year strategic plan for court reforms. Important though these reforms are, they, even taken together, are not as important as re-activating the Constitution by a verdict of the apex court, which had unanimously upheld the dissolution. It does not need a constitutional expert to know that the 1990 Constitution does not envisage an absence of the Lower House for more than six months, that, too, only for the singular purpose of seeking a fresh popular mandate.