By Dr. S. Chandrasekharan
On 19 June, a Single bench of the Supreme Court issued an interim order temporarily halting the implementation of a deal ( called 16 point agreement) made on June 8 by the four major political parties.
This ruling came in response to a writ filed by two individuals which said that according Article 138 of the Interim Constitution the issues of state restructuring-delineation of federal provinces, their numbers and names-should be decided by the Constituent Assembly before its dissolution.
The Apex Court said that the constitution without the names and borders of the provinces will contravene Articles 82 and 138 of the Constitution. The Apex court had also made it clear that the defendants’ further step towards constitution writing is likely to cause an “irreparable loss” to the country.
A detailed discussion on Article 138 was published in our site in a paper by Shri. Binit Jha, a lawyer of the Supreme Court in Nepal in paper no. 5832.
Some extracts of the paper are given below to show that the Supreme Court was justified in ordering a stay of the 16 point agreement and equally the move of the present Speaker Nembang to go ahead with the constitution drafting process by a team led by K.P.Situala is not only unconstitutional but violative of the basic principles and the spirit of the interim constitution.
2.Article 138 (1) of the Interim Constitution, states that “There shall be made progressive restructuring of the State with inclusive, democratic federal system of governance, by doing away with the centralized and unitary structure of the State so as to end discriminations based on class, caste, language, gender, culture, religion and region.”
This provision of the Constitution has once again clearly expressed that the existing centralized and unitary structure is an obstacle and the need to demolish the discriminations based on class, caste, language, gender, culture, religion and region. The message is again very clear- that the future structure would have to be an inclusive, democratic federal setup.
3. The answer to whom and why the progressive restructuring of State should concern, is in, Article 138 (1a) of the Constitution which states: “Recognizing the desire of the indigenous peoples and of the people of backward and other area including Madheshi people towards autonomous provinces Nepal shall be a federal democratic republican state. 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 center and allocation of means, resources and powers shall be determined by the Constituent Assembly, while maintaining the sovereignty, unity and integrity of Nepal.”
4. According to Article 138 (2) of the Constitution “There shall be constituted a high level commission to make suggestions on the restructuring of the State. The composition, function, duty, power and condition of service of such commission shall be as determined by the Government of Nepal.
According to this provision, during the first Constituent Assembly, a high-level State Restructuring Commission was formed by the government. This commission advised for 10 provinces. The then Congress and UML representatives, a minority in the commission, wrote a note of dissent against the proposal and presented a blueprint of 6 provinces based on capability. Capability of what? One does not know.
5. Article 138 (3) of the Interim Constitution of Nepal states that “The final settlement on the matters relating to the restructuring of the State and its form of federal governance system shall be as determined by the Constituent Assembly”.
It is therefore obligatory for the constitution makers to deeply consider the import of the articles cited in the interim constitution as also the reasons why these provisions were made after the Jana Andolan II and the Madhesi Aandolan.
As stated in the constitution itself, the need for federal restructuring was to set right that imbalance and make it “inclusive” and explicit for the Madhesi, tribal, ethnic, disadvantageous citizens of other areas. It also states very clearly that these communities’ desires and demands of an autonomous State must be addressed by the constitutional process. It is also implied that the States won’t be just exist for the sake of the name but will be truly autonomous with full authority.
Restructuring cannot therefore be done without taking into account the interests of those citizens who have till now been ignored by the government and an opportunity has thus been given to such people to upgrade and the Constituent Assembly, Nepali Congress, UML and UCPN (Maoist), cannot ignore and instead crystallize the spirit and desires of Madheshi, indigenous, tribal, backwards and people belonging to different areas and regions.”
The Chairman of the Interim Constitution Assembly as well as the leaders of the four major political leaders are said to be upset over the judgement. The Speaker is also said to have complained to the President that the judiciary should be “advised to respect the jurisdiction” of others.
Having failed to come to an understanding on the restructuring over the last six years and more, the four parties as well as the Chairman of the Assembly have no moral right to object to the just and fair ruling of the Supreme Court. There is no judicial over reach-
On the other hand, the four major political parties are trying to justify their failure by blaming the Supreme Court.
If you are unhappy with Article 138 of the Constitution, change it first before blaming the Supreme Court – but be prepared to incur the wrath of all the Madhesi and the Janajathi groups.