State governments set to end their first terms without enjoying key rights

KATHMANDU: The state governments are set to see their first five-year terms expire in a few months without being able to fully exercise the rights granted by the federal constitution.

Moreover, they have already been rendered mere caretakers with the government announcement to hold federal and state elections on Nov 20.

While the centralized mindset of the federal government is largely responsible for the powerlessness of the provincial governments, the indifference of the constitutional bench of the Supreme Court towards settling several petitions on intergovernmental jurisdiction disputes is equally responsible for the situation, according to constitutional experts.

Article 137 of the constitution says there will be a Constitutional Bench in the Supreme Court to hear and settle disputes relating to jurisdiction between the federation and states, between states, between a province and local units and among the local units. Similarly, the bench also possesses the authority to interpret the constitution on federal matters.

Sadly, the bench hasn’t given final verdicts on any of the petitions including several filed by Madhesh State, which claimed the federal parliament encroached upon its jurisdiction.

“I see attempts from different state institutions to weaken federalism and states,” Sunil Ranjan Singh, a constitutional lawyer, told the Post. “The delay in passing verdicts on the petitions relating to jurisdiction row between different tiers of government only supports such attempts.”

Since August 2019, the Madhesh State has filed six petitions at the Supreme Court claiming that the federal government, against the spirit of the constitution, was breaching the state’s jurisdiction. However, except for issuing interim orders on some of the petitions, the court has not conducted final hearings on any of them. Dipendra Jha, chief attorney of the state, said if the Supreme Court had finalized those petitions, the foundation for a full-fledged functioning of the states would have been set up.

“A verdict on the petitions would have largely ended the jurisdiction row making it easier for the states to work,” he told the Post. “Devolution of power has been obstructed as the Constitutional Bench sits on crucial petitions.”

When the state filed its first petition in August 2019, Jha had said it was a litmus test for the court. Three years later, with no verdict in sight, Jha says the court’s “indifference” is disappointing.

On June 6, 2019 the then KP Sharma Oli government decided to bring the Sagarnath Forest Development Project in Sarlahi district under the Timber Corporation of Nepal. The state challenged the decision at the Supreme Court arguing that the forest falls under the state’s jurisdiction. It then challenged the Forest Act promulgated by the federal parliament arguing it was against the spirit of federalism. Also, petitions regarding the authority to manage irrigation projects, and police integration remain sub judice for months.

“Police integration, which is one of the most important issues for the state government to function in a full-fledged manner, would have been completed had the court intervened on time,” Jha said.

Nepal has adopted a cooperative model of federalism where the three tiers of government are supposed to function in harmony. Under this model, the federal government has a facilitator’s role and the authority to prepare an umbrella law to implement federalism. In cases where parallel governments fail to function in harmony leading to a jurisdiction row, it is the court that needs to give a way out.

Senior advocate Dinesh Tripathi, a chairperson of the Constitutional Lawyers’ Forum, said in many instances the court has been taking prompt decisions, but it is sluggish when it comes to crucial issues like federalism and implementation of the constitution. “The delay doesn’t look natural,” he told the Post. “The court doesn’t seem bothered about the problems in the implementation of federalism and constitution.”

Ashok Byanju, mayor of Dhulikhel Municipality, was among the first elected officials to knock the Supreme Court’s door demanding its intervention for the delegation of authority to his local unit. In March 2018, he filed a petition at the court demanding segregation of the concurrent authorities between the three tiers of government. The petition is still under consideration of the Constitutional Bench.

Constitutional experts say the court should prioritize hearing of petitions based on their significance and those related to federalism and the constitution should be dealt with first.

Mohan Lal Acharya, a constitutional lawyer, said the very motive of forming the Constitutional Bench is to facilitate the implementation of federalism and the constitution.

“The court shouldn’t stand in the way of implementing the constitution,” Acharya told the Post. “Hearings on crucial petitions should not be delayed under any excuse.”

Officials at the Supreme Court, however, say as all the petitions in the Constitutional Bench are of serious nature, it has to give equal importance to all of them.

Bimal Poudel, the spokesperson for the court, said there are 320 petitions sub judice in the bench led by the chief justice. “The court had set a target of settling petitions within a year in maximum since they are filed,” he told the Post, adding, “However, the target has not been achieved due to different factors and growing workload.”

-Kathmandu Post