Jan 3, 2017- The Supreme Court has cleared the way for the government to table the second constitution amendment bill in Parliament for deliberation by declining to issue an interim order against the preparations to forward the proposal.
A division bench of Chief Justice Sushila Karki and Justice Ishwor Prasad Khatiwada on Monday declined to issue an interim order against the government’s move to amend the constitution citing the principle of separation of powers. The court said that it would not be judicious to prevent Parliament from using its “wisdom” in the legislation process.
Responding to two writ petitions filed separately by Advocate Tikadhwaj Khadka and five others including Bishnu Bahadur Raut, the bench said Parliament is solely authorized to make and amend laws.
“Fundamentally, the state organ authorized to formulate laws after holding discussion on the bills is Parliament,” read the verdict. “As per the principle of separation of powers as well as the principle, norms and provisions adopted by the constitution, Parliament reserves the right to examine and determine the appropriateness of the bill as per the constitution.”
Petitioners had demanded the amendment bill be withdrawn without delay claiming that the government’s move was against the letter and spirit of the constitution. They argued that the bill contradicts Article 274 (4) and should be invalid. As per the provision, consent of the concerned provincial assembly is required while redrawing their boundaries.
The bill registered in the Parliament Secretariat seeks to revise the boundaries of some provinces. The CPN-UML vehemently opposes the move and has been organizing protest programmes across the country to press the ruling parties to withdraw the bill.
The petitioners also argued that the government should follow the provision of Article 295 in resolving the boundary debate. The article states that the government can constitute a federal commission to settle issues of provincial boundaries.
The court rules that it would be prudent to consider all the provisions while amending as well as implementing the constitution.
The apex court, however, has cautioned that if the laws formulated are inconsistent with the constitution, the court could declare them unacceptable through judicial review.
“The verdict should be taken as interpretation of the constitution to act in the spirit of the constitution,” said Advocate Govinda Bandi. He argued that the verdict has set the criteria for amendment and implementation of the constitution. “The court said that the constitutional provision should be understood in its entirety, not in part. The amendment proposal should also be taken in the same way.”
The apex court says
– It is not judicious to prevent Parliament from using its wisdom in formulation of legislation.
– Fundamentally, the state organ authorized to formulate laws after holding discussions on bills is Parliament.
– As per the principle of separation of powers as well as the principle, norms and provisions adopted by the constitution, Parliament reserves the right to examine and determine the appropriateness of the bill as per the constitution.