Issuing an interim order on Friday, the apex court said issues like delineation and nomenclature of provinces should be settled before the dissolution of CA.Responding to a writ petition filed by Bijay Kanta Karna, a single bench of Justice Girish Chandra Lal stated that the points of the deal on forming eight provinces, assigning provincial assemblies to name them and forming a Federal Commission to finalize delineation would contradict with Articles 138 and 82 of the Interim Constitution.
The order states that the 16-point deal is against the Interim Constitution as Article 82 says that the business of Constituent Assembly shall end on the day of the commencement of the constitution passed by the Constituent Assembly, while Article 138 (3) entrusts the Constituent Assembly with making the final settlement on matters relating to state restructuring and the form of federal system of governance.
"As Interim Constitution is the fundamental law of Nepal, it is duty of every person to uphold it. The Constituent Assembly, executive, judiciary and even the political parties have been established as per the provisions of the constitution and institutions within the state or founded by the state should function in accordance with the constitution and constitutional law," stated the order.
"If attempts are made to draft a new constitution overriding the provisions of the existing constitution, it could be controversial and could also invite another conflict," furthered the order.
Lawyers term it departure from normal practice
Lawyers and constitutional experts have termed the Supreme Court order a departure of normal practice. "The order completely contradicts with the principle of judicial restraint. I see judiciary's political will in the order and it is objectionable," said Advocate Bhimarjun Acharya. "The order will also increase the risk of friction between parliament and the judiciary. A student of constitutional law would totally disagree with the order in principle," he added.
Constitutional expert Acharya said a political deal cannot be a matter for judicial review. "How can the court accept a political document and proposal for judicial review? The 16-point deal is simply a political proposal. It is not an enacted law or a constitutional issue for judicial review," said Acharya.
Nepal Bar Association General Secretary Sunil Kumar Pokharel termed the order the apex court's departure from normal practice. "In the past, we have seen the apex court staying away from political issues. But this order is a departure from normal practice," said Pokharel. He argued that the order is inconsistent with the previous orders and verdicts issued by the same bench.
A single bench of Justice Lal had quashed a petition seeking election of president and vice-president saying the issue falls under the jurisdiction of parliament while the bench led by Justice Lal had nullified SC's own ruling regarding the nomination of 26 CA members.
"The order has also delayed the constitution making process for the time being but the government and concerned parties should move the SC to challenge the order," said Pokharel.
Jha terms it an opportunity
On the other hand, Advocate Deependra Jha, one of the petitioners, termed the apex court order an opportunity for political parties and the Constituent Assembly to accommodate dissenting voices. "The order should not be taken as an obstacle to constitution making but as an opportunity," said Jha. He also argued that the 16-point deal became a constitutional issue as it was endorsed by the CA committee.
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