The litigation over the dissolution of the first Constituent Assembly
The failure of CA1 to finish drafting the constitution and its eventual dissolution resulted from a number of factors. First, the behaviour of top political leaders marginalised the Assembly as the forum of deliberation relating to key constitutional issues.
By undercutting the only truly representative body entrusted with the task of constitution drafting, the entire constitutional process was delegitimised. Second, inter- and intra-party squabbles over offices and seats took precedence over meaningful and long-awaited institutional reforms. Third, both the Executive and the Supreme Court became progressively more involved in matters relating to the proceedings of CA1, leading to an unhealthy tension between the various branches of the Nepali state. As a result, public frustrations with CA1 also resulted from the Assembly's inability to complete its task notwithstanding theLimiting constituent power? 141 total of four extensions of its term by way of constitutional amendment. From the original timeframe of two years, the term of CA1 was doubled through four separate constitutional amendments.
CA1 extended its original term of two years by another year (May 2010-May 2011) through the 8 th Amendment, which altered Article 64 of the Interim Constitution. Shortly after the amendment was passed, a number of lawyers filed a series of PIL petitions in the Supreme Court challenging the validity of the amendment itself. In the first petition, the Court decided the case on 4 November 2010.[483] A special bench of three judges upheld the constitutional validity of the 8th Amendment and ruled that the term of the Constituent Assembly could be extended until the new constitution was finalised. The respondents invoked the doctrine of necessity to legitimise the government’s action. Constitutional lawyer and former advisor to the President of Nepal, Surya Dhungel, excoriated the Supreme Court for this judgment.
He argued that the court’s reasoning based on hypothetical scenarios failed to provide a cogent and sound interpretation of the Interim Constitution, and, most importantly, that its role had become politicised:The court has entered into the regime of “constitutional politics” in order to help stretch and safeguard the longevity of the Constituent Assembly. It is therefore bound to be controversial as it has failed to respond to the genuine question of a fresh poll of CA in case the present CA is unable to even draft a “skeletal framework” before May 28 [2011] to justify its possible extension through another amendment of Article 64, which is solely a jurisdiction of CA. Despite the Supreme Court’s numerous hypothetical discourses of political nature, the question is still alive as to what would happen if the CA fails to produce a new Constitution and the Legislative wing of CA is unable to pass an amendment bill. Let this hypothetical question not be a reality.[484]
The confusion engendered by the lack of guidance provided by the Supreme Court in this first decision was further exacerbated by a second decision of the Court a few months later. This case arose from a separate petition that also challenged the constitutional validity of the 8th Amendment. On 25 May 2011, a full bench of five judges including Chief Justice Khil Raj Regmi came to the opposite conclusion on the constitutionality of the 8th Amendment.[485] [486] [487] The Court held that the 8 th Amendment was unconstitutional, but refused to issue an order invalidating it because its decision was handed down just three days before the expiry of
the extended term: 28 May 2011. This second judgment directly contradicted the earlier one; while it was not a re-examination of the first judgment as they arose from two separate petitions, it effectively overruled it.
Constitutional expert Bipin Adhikari offers an insightful analysis of the second judgment in the CA1 extension litigation, especially given that this decision was handed down after the government had tabled the 9th Amendment Bill to extend CA1 term further by three months:
Commenting on the earlier ruling, Chief Justice Khilraj Regmi, Justices Damodar Prasad Sharma, Ram Kumar Prasad Shah, Kalyan Shrestha and Tahir Ali Ansari said the term cannot be extended an infinite number of times.
Without mentioning anything about the Interim Constitution (Ninth Amendment) Bill 2011, awaiting the order of the Chairperson Subash Nemwang to introduce it in the house at that time, the SC specifically stated that extension of the house on any basis for more than six months is not contemplated by the constitution. In other words, the Interim Constitution (Eighth Amendment) Bill 2010, by which Article 64 of the constitution was amended, meant a one-year house term extension did not meet the constitutional requirement. The court pointed out that while it accepts the unconstitutionality of the eighth amendment, it does not want to overrule it for the simple reason that there have already been many developments in the constitution building process. Based on the (unconstitutionally) extended period, annulment of these developments is not in the interest of the public. However, it is clear that if the eighth amendment extending the mandate of CA in normal times for one year was unconstitutional, then the ninth amendment proposing the same for another additional year cannot be constitutional ipso facto.24Adhikari concluded his analysis by saying that this kind of litigation was there to stay. In fact, the two lawyers behind the second petition had already filed another PIL in the Supreme Court to challenge the validity of the 9th Amendment extending the CA1 term by three months (May-August 2011) as soon as it was passed.
In this third case, on 28 August 2011, Nepal's Supreme Court quashed the petition and upheld the constitutional validity of the 9th Amendment on the basis of the doctrine of necessity.25 In this convoluted judgement, the Supreme Court, on the one hand, upheld its earlier decision of 25 May 2011 in the second petition concerning the 8th Amendment, but, on the other hand, refused to strike down the 9th Amendment noting the brevity of the three-month extension. Moreover, the Supreme Court again had to decide a case on the constitu- [488] [489]
Limiting constituent power? 143 tional validity of an amendment extending the CA1 term when the extended term had already ended.
The timing of the decision had serious policy implications, including that declaring these amendments unconstitutional would invalidate the previous work of CA1, which was also Nepal's legislature.Bipin Adhikari criticised the Supreme Court for straying from a literal interpretation of the Interim Constitution and becoming involved in essentially political matters outside of its purview and competence:
Article 64 of the Interim Constitution is very clear. It clearly states that unless otherwise dissolved earlier by the Constituent Assembly (CA) itself, the term of the house shall be two years. There is only one exception to this rule. The term of the house may be extended for up to six months in the event that the task of drafting the constitution is not complete due to the proclamation of a state of emergency in the country. The court could have delivered its decision based on this clear-cut provision.. the Supreme Court tried this time to read the political situation in the country which was not necessary. It ignored the fact that the Constituent Assembly was a fixed term house, and there was no emergency in the country in May 2011 to allow it extension on exceptional ground. When the constitutionality of the eighth amendment bill was challenged last year, the court agreed that there could be no extension beyond six months, whether there is an emergency or any other dire necessity. But it declined to declare the unconstitutional extension null and void at that time because it thought that would negatively affect the achievements of the CA made during this extended period. But the judgment of the court left little space for the CA to work on another extension after the completion of this unconstitutionally acquired one year additional term. It is therefore natural that the issue was taken up once again by public interest litigants, when the house passed Interim Constitution (Ninth Amendment) Bill extending the term of the house for another three months.
But the Supreme Court annulled the writ petition on the ground that despite the efforts of political parties, the twin tasks of peace building and constitution drafting processes remain incomplete and the extension of CA's tenure was necessary to complete these tasks. Apparently, it ignored the emergency clause, and in the absence of the enabling provision in the constitution, it relied on the doctrine of necessity to validate the extension. This interpretation is not sound. The court has become unnecessarily generous. It has misread the political economy of the peace process and constitution building. There is a fear that the House may not complete the tasks for several reasons even though the court is prepared to give unlimited extension to the house.[490]Adhikari presciently concluded that this line of judicial reasoning centred on political expediency and deference to the executive would also invite further litigation along these lines as CA1 was already extending its own term for a third time. In fact, on 31 August 2011, CA1 passed the 10th Amendment to extend its term by another three months (August-November 2011). As predicted, on 21 September 2011, Advocates Bharat Jangam and Balkrishna Neupane filed yet another PIL petition in the Supreme Court arguing that it was a violation of Article 64 of the Interim Constitution to extend again the Assembly’s term under the 10th Amendment.
On 25 November 2011, a special bench of the Supreme Court comprising then Chief Justice Khil Raj Regmi, Justices Damodar Prasad Sharma, Rajkumar Prasad Shah, Kalyan Shrestha, and Prem Sharma ruled on this writ petition. The bench ordered CA1 to complete the drafting of the new constitution before the expiry of the six-month extension (before May 2012). In this respect, the Court issued an order stating that “if the Constituent Assembly was to fail to promulgate the new constitution within the next six months, its term would automatically expire after those six months.”[491] This order effectively served as constructive notice forbidding further extensions of the Assembly’s term by way of constitutional amendment to the Interim Constitution.
The reasoning deployed the language of the basic structure doctrine to interpret Article 64 concerning the term of the Constituent Assembly, which was defined as “unamendable and mandatory” also in the previous two decisions on the extension of the CA1 term. It further infers that the framers of the Interim Constitution did not intend for frequent amendments to the document. In its reasoning, the Supreme Court also focused on the Preamble of the Interim Constitution and extensively referenced democracy as the guiding principle of its interpretation. As such, the Court reclaimed its role of guardian of the constitution and enforcer of the rule of law, claiming that the Constituent Assembly ought to answer to the people and respond to their aspirations by finalising the new constitution. The Court went on to state that the CA1 work schedule included in the written replies of the respondents lacked credibility and the progress on the constitution-making front was negligible.The Supreme Court, however, stopped short of invalidating the 10th Amendment and stated that if the Constituent Assembly were to be unable to complete the task of constitution drafting within the extended period, it would be ipso facto terminated. Of course, at the time of the decision the 11th Amendment Bill was being tabled in CA1 to extend the terms of the Assembly for a fourth time by six months (November 2011-May 2012).
Nonetheless, the decision caused outrage. The Supreme Court was accused by many politicians (especially Maoists) of overreaching and overstepping its
Limiting constituent power? 145 constitutional role as the question of constitution making was essentially political and outside of the Court's jurisdiction. Former Chief Justice Kalyan Shrestha, in an interview that I conducted with him later on, reflected on the case and stood by the decision the Supreme Court had reached in November 2011. He said that the Supreme Court at that time was greatly concerned about interfering with constitutional amendments, but that the Constituent Assembly was not making any progress with the drafting. Justice Shrestha argued that constitution making is not an exercise that can continue indefinitely without a fresh electoral mandate, and that the Court had to resort to the doctrine of necessity under those circumstances.[492]
The Constituent Assembly, however, was unable to complete the new dispensation even within the extended timeframe under the 11th Amendment. Thus, on 22 May 2012, the Government tabled the Constitution (13th Amendment) Bill supported by the main four political parties to extend the term of the Constituent Assembly by a further three months until August 2012. Immediately, two petitions were filed in the Supreme Court.
In the first case, Advocates Rajkumar Rana, Kanchan Krishna Neupane, and Bharat Mani Jangam sought a stay order on the 13th Amendment Bill tabled in the Assembly. The single bench of Chief Justice Khil Raj Regmi found for the petitioners and issued a stay order on the Amendment Bill, effectively disallowing any further extensions of the Assembly's term. The Chief Justice found the government to be in violation of the Supreme Court Order issued in November 2011 and to be in breach of their duty to complete drafting the new Constitution by May 2012.[493]
In the second case, on 24 May 2012, a single bench composed by Justice Kalyan Shrestha entertained a contempt of court petition filed by Advocate Kamal Prasad Itani against Maoist Prime Minister Baburam Bhattari and Nepali Congress Minister for Law and Justice Krishna Prasad Sitaula claiming that the government decision to seek the Constituent Assembly's term extension went against the Constitution and violated the Supreme Court's November 2011 decision. Justice Shrestha responded to the petition by issuing an order demanding that the defendants furnish written replies before the Supreme Court.[494] He went so far to tell two very senior politicians and party leaders that they could not send their representatives in such a case, and that they would have to attend the hearing in person.[495] The backlash against this bold decision was immediate. Kalyan Shrestha recounted in an interview with me that a few days after his decision in the contempt case, his father rang him on the telephone to tell him that he had heard on
the radio that the Maoists were preparing an impeachment motion against him and the Chief Justice; eventually they dropped the plan.[496]
In response to the two adverse judicial decisions, last-minute negotiations took place amongst the main political party leaders outside the Assembly, but to no avail. When the leaders failed to reach a compromise on federalism on 27 May 2012, Prime Minister Bhattarai advised the President to dissolve CA1 and immediately called for new elections. The dissolution of the Assembly left Nepal with neither a legislature nor a constitution-drafting body in place for over a year and a half. It also led to a major constitutional crisis in which the Supreme Court became directly embroiled.
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