Saturday, May 26, 2012

Extension of CA's term by 3 months

Mechanically speaking Parliament has power to amend any provision of the constitution in accordance with Article 148; including Article 64 which has fixed the term of CA as, initially, 2 years. It is said that “Parliament can do everything except, making a woman a man or a man a woman”. But no parliament in the world has run amok as such and that is the beauty of democracy; even popularly elected parliament doesn’t have certain powers which can only be vested in the voters; including how long they want to have a particular group of parliamentarians represent them.

Therefore, the provision related to the term of the parliament is universally held sacrosanct as a body elected by the people cannot self-perpetuate itself by tampering with the provision related to the term. If the parliament is to be deemed to have power to amend this clause and allow it to act unbridled as such it could even go to the extent of becoming not only ridiculous but ludicrous as well. The parliament can even be deemed to have power to pass an amendment to Article 54, for example, enshrining right for every elected MP to choose her/his nominee to become an MP after her/his demise (it can amend as such with two-third majority). Therefore, no parliament can and should have power to amend the provision related to term of the parliament and that is why nowhere in the world parliaments use any such right to self-perpetuate.

The silver lining of going against this convention will be that the parliaments all over the world could be self perpetuated as long as the parliamentarians wish to, simply by amending the provision related to the term of the parliament; thereby saving a huge amount of money that has to be spent for holding election. The whole world put together can save unimaginable quantum of money by simply extending term of the respective parliaments by amending a related provision.

But this is simply not done anywhere in the world, because the voters need to be afforded an opportunity to review the performance of the people they elected every so often and new blood injected into the parliament. An anomaly can be drawn with the expiry date of the medicine; after the expiry of which the medicine will not only be no good, but could even be poisonous. But one can easily extend the validity of the medicine by simply changing the label which “dictates” the expiry time.

British parliament tried something similar in 1649 but Oliver Cromwell (who ended British monarchy by decapitating Charles I) chased away the MPs and no parliament worth a name all over the world has dared to self-perpetuate themselves after that. I trust people will not misconstrue my statement as an encouragement for someone in Nepal to emulate Cromwell.

I had published an article on this very topic on 18th Phalgun 2066 even before the actual 2 year term ended on 14th Jestha 2066 which you can peruse by clicking the link below:

Most importantly, a bill passed by the parliament becomes an Act only after it is certified by the President under Article 87. President also needs to adhere to the verdict of Supreme Court, besides accepting the advice of both executive (cabinet which has decided in favor of the extension) and legislature (which would pass extension bill). Therefore, he will not have right to sign the bill to render it into an Act without which the term of CA will not get extended. What will happen if he fails/refuses to sign the bill after 14th Jestha 2069? Nepal will be looking at a big void (vacuum) with rampant anarchy. On the other hand if he signs such a bill into an Act, then he will be committing contempt of Supreme Court and could be prosecuted. Many a lawyers worth their salt will jump at the opportunity.

Therefore, as a medicine whose “date” has expired needs to be dumped, present CA has exceeded its expiry date and it is high time Supreme Court verdict is honored and alternatives planned before “expiry” of 14th Jestha 2069. One good alternative is to amend Article 63 (3) (ka) to limit number of members to about 200 MPs and conduct fresh election.

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