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Condolence to Nepalese constitution 1990 -Special editorial
For the first time in the 15-year history of the constitutional practice, the constitution of the kingdom of Nepal 1990 has been effectively `amended' through executive order while appointing Chief Justice of the Supreme Court.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 sitting prime minister to the chief justice. According to the amendment, 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 abide 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;© the Speaker of the House of Representatives Member;(d) the Chairman of the National Assembly Member; and(e) the Leader of the Oppositionin 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.Press Secretariat of His Majesty said Friday that His Majesty King Gyanendra has issued an order, as per Article 127 of the constitution, specifying Chief Justice to chair the meeting of Constitutional Council (CC) in order to recommend a person for the post of Chief Justice. Chief Justice is one of the members of the CC.The order had to be issued as His Majesty chairs the Council of Ministers and there is no Prime Minister in the country. Experts say this very situation has given rise to a 'grave constitutional crisis' as manifested in the appointment process of the Chief Justice of the country.Article 117 of the constitution has made provision of the Constitutional Council (CC), which is headed by Prime Minister. Other members of the CC include Chief Justice of the Supreme Court, Speaker of the House of Representatives, chairman of the National Assembly, leader of the main opposition in the House of Representatives and Minister for Law, Justice and Parliamentary Affairs.As positions of Prime Minister, chairman of the National Assembly and leader of the main opposition in the House of Representatives remain vacant, Speaker of the dissolved House Taranath Ranabhat and newly appointed Minister for Law, Justice and Parliamentary Affairs Niranjan Thapa took part in the meeting of the Constitutional Council Friday afternoon. Chief Justice Hari Prasad Sharma chaired the meeting a few hours before his tenure was due to expire.Nepal’s constitution cannot be amended? No it can be amended as provisioned in the Article 116:PART 19AMENDMENT OF THE CONSTITUTION116. 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.Experts say the act of `amending' the constitutional provision (in this case, the provision of Article 117) through an executive order is blatant violation of the letter and spirit of the present constitution."Nowhere in the world can a constitutional provision be amended by invoking another Article of the same constitution," said exports. There is certain procedure to amend the constitution which must be fulfilled while amending the fundamental law of the land .Article 116 of the constitution of the kingdom of Nepal says, the constitution can be amended (except those described as non-amendable) by the two-third majority of the House of Representatives only.The House of Representatives remains dissolved for the last three years.For the first time in the 15-year history `amended' constitution through executive order while appointing Chief Justice of the Supreme Court, made the Constitution of Nepal totally dead .
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