Prohibits nomination of FPTP, PR candidates; states those nominated should have independent standing
KATHMANDU, May 12: The Supreme Court (SC) issued a mandamus order to the government Monday to appoint the remaining 26 lawmakers in the Constituent Assembly in line with Article 63 (3) (C) of the Interim Constitution and to do so within 15 days. The apex court also ordered that the appointments should not be made on the basis of political sharing among the political parties.
A division bench of Justices Ram Kumar Prasad Sah and Kalyan Shrestha asked the government not to delay nominating the 26 lawmakers any further, stating that the Constituent Assembly (CA) would be incomplete without these appointments and that in turn would raise questions over the very legitimacy of the CA’s functioning.
Responding to a public interest litigation filed by Dalit Janajati Party Chairman and lawmaker Bishwendra Paswan, the apex court has issued a prohibitory order to the Council of Ministers not to nominate individuals from political parties who were candidates in the recent CA elections.
Clause A of the constitution has a provision ruling out FPTP candidates in the CA polls while Clause B rules out PR candidates.
“Clauses A and B of Article 63 (3) guarantee the representation of political cadres in the Constituent Assembly as these clauses are the mainstay of representation in the CA,” states the verdict. “However, arguing that representation in the CA should only be through political competition would not be right,” it added.
The apex court has also explained that Clause C of Article 63 (3) is a special provision to make the CA an institution representing all walks of Nepali life.
“As this is a constituency for special representations, it is clear that it should be kept free from the direct or indirect influence of political competitors, who already benefit from the provisions under Clauses A and B of Article 63 (3),” the SC explained.
SC has also made it mandatory for the government to clearly state the contributions made to the nation by CA members to be nominated by the cabinet. “To state the basis for the nominations is mandatory for such public and constitutional decisions,” stated the apex court.
“The twenty-six members are to be nominated on the basis of understanding by the Council of Ministers from amongst prominent persons who have made outstanding contributions to national life and indigenous people who could not be represented through elections as mentioned in Clauses A and B,” states Clause C of Article 63 (3).
The apex court has also explained what should be considered as areas of national life. “History, culture, art, literature, law, industry, commerce, economics, information and communications, civil society, education, social welfare, civil service, entertainment, sports, mountaineering and similar other important areas are integral parts of national life,” stated the verdict.
“As per the constitution it is the right of the Council of Ministers to decide from which section of national life the representations should be made. However, it is clear that the selection should not be arbitrary and should be as per the spirit of the constitution,” said the Supreme Court.
Likewise, the apex court has also asked the government to analyze the current representation of indigenous peoples in the CA before nominating lawmakers from indigenous communities which could not be represented through elections.
Meanwhile, the court has also drawn the attention of the CA secretariat to allocate separate offices and seating arrangements for the 26 nominated lawmakers and, if necessary, to make amendments in the CA Regulations for this.
“The lawmakers nominated as per Clause C of Article 63 (3) are different from the political representatives elected as per Clauses A and B and their representation is independent in nature,” stated the apex court.
Lawmaker Paswan had filed the PIL on January 8 claiming that the political parties are all set to misuse the provision of nominating 26 lawmakers by sharing the positions among the major parties as they had done in the previous CA.
“There is no question of revisiting the nominations of the previous Constituent Assembly. However, the previous practice should not be repeated,” stated the SC verdict.
In the previous CA, CPN-UML leader Madhav Kumar Nepal and Tarai-Madhes Democratic Party Chairman Mahantha Thakur were among those nominated though they had lost the elections in their respective constituencies under the FPTP electoral system.
Published on 2014-05-13 07:36:05