I wonder if the decision by Supreme court judges Khila Raj Regmi, Tap Bahadur Magar, Ram Kumar Sah, Kalyan Shrestha and Damodar Prasad Sharma can be labeled as ‘Monkeys decision.’ Because, the SC judges are not free to give any decision, only monkeys are. Judges are bound by the written, typed and published constitution and their own earlier decisions. Only monkeys may transgress either.
Both the constitution and the earlier SC decision are clear that the CA could have been extended by only 6 months in the time of emergency, not in normal time. Thus the CA extension of 2010 it self was unconstitutional. Yet the SC did not block the extensions either in June and or in August of 2011. The SC states, “The 3 months extension cannot be challenged as parties failed to draft the new constitution and take the peace process to a successful conclusion.” What a twisted logic. That is precisely why the CA has lost people’s mandate and extension should not be granted.
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1. The doctrine of necessity by Dr. Bipin Adhikari:
http://www.telegraphnepal.com/opinion/2011-09-05/nepal:-doctrine-of-necessity-is-vulnerable-on-any-ground
2. SC trashes petition challenging legality of CA tenure extension.
NepalNews.com August 28, 2011
The Supreme Court (SC) on Sunday annulled the writ petition challenging the validity of the three-month term extension of Constituent Assembly (CA) on Sunday. A five-member SC bench led by Chief Justice Khila Raj Regmi including senior justices Tap Bahadur Magar, Ram Kumar Sah, Kalyan Shrestha and Damodar Prasad Sharma scrapped the petition saying that the constitutionality of the three-month extension of CA term cannot be challenged as it was based on the “doctrine of necessity” as parties failed to draft the new constitution and take the peace process to a successful conclusion.
SC passed the final verdict following a week-long hearing,. The bench had taken the help of the amicus curiae sent by Nepal Bar and Supreme Court Bar to arrive at a verdict on the case. The SC, however, said that its earlier verdict - that the CA term cannot be extended by more than six months in normal situation unless there are special circumstances and a state of emergency is imposed – stands. nepalnews.com
3. CA term can’t be extended by more than six months: SC
NepalNews.com May 26, 2011
The Supreme Court (SC) has ruled Wednesday the Constituent Assembly (CA) term cannot be extended by more than six months in normal situation. The CA term cannot be extended for more than six months unless there are special circumstances and a state of emergency is imposed, said an SC full bench led by chief justice Khila Raj Regmi reviewing the November 4, 2010 verdict on a writ filed by advocates Bharat Mani Jangam and Balkrishna Neupane.
Advocates Jangam and Neupane had filed the writ claiming last year’s CA term extension was unconstitutional and had demanded the extension must be annulled.
The SC full bench has rejected their demand to annul last year’s term extension saying it was meaningless to annul the extension as there are only three days remaining of the extended term and the annulment of the extended term would affect the tasks carried out by the CA in the extended term.
However, the full bench comprising of justices Damodar Sharma, Ram Kumar Prasad Shah, Kalyan Shrestha and Tahir Ail Ansari upheld the advocates claim that CA had breached its jurisdiction by using the authority of the Legislature Parliament to amend the constitution.
It has asked the Legislature Parliament and the CA to correct the mistake by taking the decision to amend the constitution through the legislature parliament the next time the constitution is amended.
On November 4, 2010 the SC had said the CA term does not end until its task of drafting the constitution is completed. Wednesday’s final verdict has overruled the previous verdict, said SC spokesperson Hemata Rawal. nepalnews.com
