By Kiran Chapagain on July 29th, 2005 in Eagle Eye
In yet another setback to the Nepal’s Constitution, the king has “amended” the constitution through a decree early Friday morning. The state-owned Radio Nepal in its 7 am news bulletin said that the king has, in accordance with the Article 127 of the Constitution, granted authority of a stitting prime minister to the chief justice. According to the amendement, the chief justice can now chair and call the meeting of the Constitutional Council (CC).
If the Article 117 of the Constitution of Nepal 1990 is to be abided by, it is a sitting Prime minister who heads and calls the meeting of the CC. Now the authority of a sitting prime minister has been delegated to a chief justice, meaning amendment in the constitution through a royal executive decree.
Article 117 reads thus :
117. Constitutional Council:
(1) There shall be a Constitutional Council, for making recommendations in accordance with this Constitution for appointment of officials to Constitutional Bodies, which shall consist of the following as Chairman and members:
(a) the Prime Minister Chairman;
(b) the Chief Justice Member;
(c) the Speaker of the House of Representatives Member;
(d) the Chairman of the National Assembly Member; and
(e) the Leader of the Opposition
in the House of Representatives Member.
(2) For the purpose of recommendation of an appointment of the Chief Justice, the Constitutional Council shall include among its members the Minister of Justice and a Judge of the Supreme Court.
(3) The functions, duties and powers of the Constitutional Council shall be as determined by this Constitution and other laws.
(4) The Constitutional Council constituted pursuant to clause (1) shall have the power to regulate its working procedures on its own.
The â��amendmentâ�� in the Constitution was done to appoint a new chief justice of Nepal. The royal government of â��corrupts, bank defaulters and convicted criminalâ�� was in crisis over appointing new chief justice as there was no sitting Prime Minister to chair and call the CC meeting. CCâ��s recommendation is necessary for the king to appoint a new chief justice. If the Constitution is to be abided by (Article 87, 4), the king had no option than to designate an acting chief justice at the when there was no sitting prime minister to call and head cc meeting to recommend the name of the next chief justice. The post of chief justice went vacant today. The Article 87 reads:
87. Appointment, Qualifications and conditions of Service of Judges of the Supreme Court:
(1) His Majesty shall appoint the Chief Justice of Nepal on the recommendation of the Constitutional Council, and other Judges of the Supreme Court on the recommendation of the Judicial Council. The tenure of office of the Chief Justice shall be seven years from the date of appointment.
(2) the Supreme Court for at least five years is eligible for appointment as Chief Justice.
(3) Any person who has worked as a Judge of an Appellate Court or in any equivalent post of the Judicial Service for at least ten years, or has practised law for at least fifteen years as a law graduate advocate or senior advocate, or who is a distinguished jurist who has worked for at least fifteen years in the judicial or legal field is eligible for appointment as a Judge of the Supreme Court.
Explanation: For the purpose of this clause, services rendered prior to the commencement of this Constitution as a Judge of a Regional Court or Zonal Court shall be deemed as service rendered in an Appellate Court.
(4) If the office of the Chief Justice becomes vacant, or the Chief Justice is unable to carry out the duties of his office due to illness or any other reason, or he cannot be present in office due to a leave of absence or his being outside of Nepal, His Majesty may designate the seniormost Judge to act as the Acting-Chief Justice.
Speaker Tara Nath Ranabhat, who is also a CC member, had last week told me in an interview that the Article 127 cannot be invoked to appoint chief justice as there is clear provision of designating chief justice when the post lies vacant (Article 87).
Does it mean that Nepalâ��s constitution cannot be amended? No it can be amended as provisioned in the Article 116:
AMENDMENT OF THE CONSTITUTION
116. Amendment of the Constitution:
(1) A bill to amend or repeal any Article of this Constitution, without prejudicing the spirit of the Preamble of this Constitution, may be introduced in either House of Parliament:
Provided that this Article shall not be subject to amendment.
(2) If each House, with a two-thirds majority of its total membership attending, passes a Bill introduced pursuant to clause (1) by a majority of at least two-thirds of the members present, the Bill shall be submitted to His Majesty for assent; and His Majesty may, within thirty days from the date of submission, either grant assent to such Bill or send the Bill back for reconsideration with His message to the House where the Bill originated.
(3) A Bill sent back by His Majesty pursuant to clause (2) above shall be reconsidered by both Houses of Parliament; and if both the Houses, upon following the procedures referred to in clause (2), resubmit the Bill in its original an amended form to His Majesty for assent, His Majesty shall grant assent to such Bill within thirty days of such submission.
What lawyersâ�� have to comment on the â��amendmentâ�� then? Supreme Court advocate Indra Lohani has to say this, â��The Constitution is gone now. It is amended.â��
11 Responses to “Constitution Amended?”
1. Raj Says:
July 29th, 2005 at 9:53 pm
Is there any alive constitution exist in nepal? It’s dead body, so stinks!
2. season Says:
July 29th, 2005 at 9:56 pm
How can the Constitution remained unamended when the democratically elected Prime Minister dissolves the House and does not conduct election for more than 6 months? That is the reason there is no chairman of the upper house, no leader of the oppostion. The blame should definitely go to the parties and of course to Mr. Sher Bahadur Deuba.
In fact the King has corrected the void by asking the chief justice to chair the constitutional council which appointed another chief justice today. And, Mr. Dinesh Wagle, you are not supposed to interpret the constitution, it is the chief justice and indeed the supreme court which should be doing it. If Keshav Prasad Upadhaya thinks it is fine who are you and who am I to comment????
UWB: Blogger Kiran Chapagain wrote this blog, not Dinesh Wagle as this commentator thinks. We would like to say that constitution is not the bapauti of anyone. It’s the property of sovereign Nepali people and they have right to comment over its misuse.
3. anon Says:
July 29th, 2005 at 11:10 pm
If anybody thinks that single most corrupt person in the country can order to amend the constitution then they belong to ancient age. Even Roman emperors lived under some law and here are KG and his supporters – ke ko avatar. KG has no business filling any void. That’s not his job. The biggest void that needs to be filled is for KG and all of butt lickers.
4. King Kong Says:
July 29th, 2005 at 11:18 pm
How to amend a dead thing?
In a democracy everybody can discuss freely about the constitution.
But the whole thing really looks like a few old men dancing around a dead body.
The last constitution had fatal mistakes, which are obvious now. Rubber paragraphs(127) must be scrapped and the king has to be defined precisely to a ceremonial role.
If he wants to save Nepal, he has to give up the crown, become a politician and truely work for all Nepali.
King Kong says: Only courage can change the situation!
5. 1whocandie4u Says:
July 30th, 2005 at 12:30 pm
There is no necessity of making much hue and cry regarding the appointment of CJ. It is the appropriate method adopted in the given situation and it is perfectly valid and appropriate result has come out. In fact, Article 127 should be used to remove the constitutional deadlock and not tyo create it.
Constitutional Monarch does not have right to dismiss elected government under Article 127 because it does not put full stop to the constitutional crisis rather(we can see) it has created such problems but appointment of CJ without disrupting the adopted norms comes within the ambit of Article 127.
So far as the liveliness of Our constitution, it is a debatable question, You can see my paper on constitutional crisis in Nepal , which I will release after some months, and going to be Presented in New Delhi in Edict Conference……………..
6. D.MICHAEL VAN DE VEER Says:
July 30th, 2005 at 3:09 pm
“AMENDED” ??????????????? After the “Coup” that brought the present Criminal/Mafia/Royal Regime to power………. THE CONSTUTION WAS “AMENDED” ON FEB.-1.
7. Bogman Says:
July 30th, 2005 at 6:02 pm
The funny thing really is that Gyanendra bothers with these farcical half-legal half-constitutional charades at all. Who does he think he’s fooling?
8. 1whocandie4u Says:
July 30th, 2005 at 7:41 pm
I think in what way the CJ has been appointed is a best practice given the situation in Nepal. We know that there is a constitutional Crisis in Nepal and there can not be Constitutional Council because there is no PM to chair it……….Now, there could be three options:
1. To call the meeting of CC under the chairmanship of King-This would not be best practice because King is king and not PM. If we have to follow his words, he is chairman of present council of Ministers and not PM. If there was his chairmanship in CC, there would be fear and apprehension of intervention in (in)dependent judiciary—- though We do not know how independent it is after the political speech of the then CJ H.P Sharma.
2. The second option could be chaimanship under Speaker.But, under the protocol, CJ is above the Speaker. So, the membership of CJ under Speaker’s chair would be like a “chinashop in the bulls’ gathering” coz another member also would be junior to CJ.
3. Third option would be chairmanship of anybody like T. Giri or that of K. N. Bista or Pawan Kumar Ojha(attorney General) or even chairmanship of Dinesh Wagle or of Kiran Chapagain or even of me, if king had authorised under Art. 127. I think this would be least perceivable and justifiable and…
We have to say that what King did in this situation is the best possible way to remove hardships and difficulty
9. anonymous Says:
July 30th, 2005 at 9:51 pm
the active monarch: why should KG govern acc to any constitution when he is above it, he is god. The people have to serve him, obey, slavery was just recently partly abolished.
10. Ghanendra Says:
August 1st, 2005 at 4:18 pm
why are we talking about amendment ? Any sensible people knows that constitution was already dead on Feb 1. what gyanendra is doing here is to placing some chemicals to decompose it faster. Trust me, I am more afraid of paras than gyanendra. let us do something now before it is too late.
11. kanta Says:
August 8th, 2005 at 1:51 pm
season, timilai pani season le chhoyoki kya ho?