Saturday, 24 July, 2021

Uphold Constitutional Principles And Spirit

Constitutionalism that is integral to democracy is an evolving process. It is institutionalised through practice. The Supreme Court (SC) is the ultimate interpreter of the constitution, and helps develop constitutional norms when a justice seeker moves the court. The SC is now set to issue a landmark verdict on the dissolution of the House of Representatives (HoR) after completing the hearings on it. This is the second time the apex court is saddled with the task of settling the complex constitutional question. On February 23, it had reinstated the HoR which Prime Minister KP Sharma Oli had dissolved on December 20, following the fierce intra-party feud within the then ruling Nepal Communist Party (NCP). There were different contexts in which the House was dissolved twice. It rocked the Nepali politics as the Lower House is the only legitimate source of creating and empowering the executive.

The reinstated House had faced the same fate owing to the structure of the House and intraparty bickering within ruling CPN-UML. The President, on the recommendation of the Council of Ministers, dissolved the House again on May 22 and announced snap polls for November 12 and 19. Subsequently, the issue was dragged into the court that has fixed July 12 for passing the verdict on it. The SC spent total 32 hours in hearing in response to a writ petitions filed by as many as 146 lawmakers including the leader of main opposition Sher Bahadur Deuba. Dozens of lawyers including four amicus curie members put their opinions on the case. This time the court has to interpret Article 76 (5) of the constitution whether it allows lawmakers to act independently and put their signatures on a petition to form the government under a lawmaker of another political party. It should also explain whether such lawmakers are subject to disciplinary action from their own parties should they violate party whip during the vote of confidence.

Altogether 23 UML lawmakers and less than a dozen lawmakers of Janata Samajbadi Party supported Deuba to form a government under Article 76 (5), claiming they can enjoy independent status under this provision. However, arguments were put before the Constitutional Bench that lawmakers cannot go against their own parties in a parliamentary system, which can hardly be envisioned without maintaining party discipline. Similarly, the petitioners have argued that a Prime Minister, who lost confidence vote, cannot claim for the post of Prime Minister under another provision of the same Article again and again. They claimed that alternatives should be sought from other eligible lawmakers.

The political parties and the common people are eagerly waiting for the court verdict that will bear broader implications in the national politics. The court has the discretionary right to interpret Articles of the constitution. In doing so, it cannot supersede the letter and spirit of the constitution. Nonetheless, the constitutional adjudication enables constitution to be dynamic, acceptable and inclusive. It fosters the vibrant constitutional practice that in turn enhances the given system. A constitution is just a document, and rule-based activity makes it alive and encourages the concerned stakeholders to uphold the principles of constitutionalism. It will definitely yield positive results for rule of law and inspire politicians to respect and enrich constitution through its credible interpretations and acceptance.