The lawyers from the Nepal Bar Association (NBA) mad such arguments while speaking at the Constitution Committee (CC) of the Constituent Assembly on Monday. [break]
Lawyers Prem Bahadur Khadka, Harihar Dahal, Badri Karki and Sambhu Thapa were to speak on the jurisdiction of the proposed constitutional court, but all of them argued that there is no need of such a court.
“They have proposed that the verdict of a constitutional court is binding and its legality cannot be questioned at the Supreme Court. This means Supreme Court would no longer remain supreme,” argued advocate Khadka who is NBA president.
The CA committee on judiciary has proposed making parliament the final interpretor of the constitution. After the lawmakers from Nepali Congress (NC) and the CPN-UML vehemently opposed the decision saying it would be against the principle of independent judiciary, the subcommittee under the CC had decided to go for a constitutional court as a middle path to solve the disputes.
“Interestingly, the CA committee on judiciary has given the SC also the power to interpret the constitution. Doesn´t that create problems,” Khadka argued.
The lawyers also argued that the provision of constitutional court could also lead to politicization of the judiciary through appointment of judges by the executive.
“It may overtly serve the interests of the ruling parties with individuals close to them as the justices at the court,” argued Harihar Dahal, “Then it means the SC would only see civil and criminal cases.” Dahal said that the success story of constitutional court in a few countries may not guarantee its success in Nepal.
“A constitutional court was established in South Africa in 1994 for different reasons which would check the deviations from the set 34 constitutional principles during the constitution drafting process. It was also necessary in that country as only the whites were judges in the courts during that time,” said Khadka.
The lawyers argued that it is better to form a bench of four or five justices at the SC itself to look into constitutional issues, and disputes between provinces or provinces and the center in the federalized Nepal. “Creating a seperate bench at the SC to look into constitutional issues would avert unnecessary, serious conflicts between the SC and the constitutional court,” said Khadka.
Three more lawyers from the NBA are scheduled to present their views on constitution court at the CC meeting Tuesday.
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