By Binod Ghimire in The Kathmandu Post, Oct 31, 2023
The writer covers parliamentary affairs and human rights for The Kathmandu Post.
Amid Supreme Court’s reluctance in deciding six petitions related to jurisdiction row between the federal and provincial governments, a new petition has been lodged by the Bagmati Province arguing that the centre has overstepped its authority in transport management.
As per the decision of the provincial Cabinet, Laxman Lamsal, provincial minister for labour, employment and transportation, filed the petition demanding scrapping of the Urban Area Public Transport (Management) Authority Act promulgated by the federal parliament last year. The Act authorises the federal government to set up an authority to manage public transport in three districts of the federal Capital. Bagmati Province has 13 districts.
As transport management falls under the explicit jurisdiction of provinces, the Act by the federal government is against the constitution, the petition argues. “The constitution doesn’t allow the federal government to manage public transport in any part or the districts within the province. The Act envisions segregating three districts [of the Kathmandu Valley] from the 13 districts of the province. It is against the constitution and the principle of constitutionalism,” reads the petition.
Transport management has been listed as an explicit authority in Schedule 6 of the Constitution of Nepal.
Talking to the Post, Lamsal said any law that contradicts the constitution must be scrapped. “As the Supreme Court holds the ultimate authority for interpreting the constitution, we have knocked on its door,” he told the Post. The Constitutional Bench in the apex court will decide the matter.
However, if the past is any guide, the track record of the bench in deciding petitions related to jurisdiction row is not encouraging. The previous government in the Madhesh Province had filed six different petitions arguing the federal government prevented it from exercising its constitutional authority.
The court hasn’t passed a final verdict in any of the petitions, even though one of them is four years old.
It was on August 1, 2019 that the Province 2 [presently Madhesh] government filed the first writ petition against the federal government. It had challenged the decision of the Ministry of Forest to merge the Sagarnath Forestry Development Project with Timber Corporation of Nepal. The constitutional bench had issued an interim order in the Provincial government’s favour, but the final verdict is due.
The provincial government had filed another writ petition against the federal government’s handling of provincial police-related issues. Similarly, another writ petition was filed against some provisions of Federation, Provinces and Local Level (Coordination and Inter-relations) Act. On December 4, 2020, the provincial government moved the Supreme Court against the federal government saying it interfered with its constitutional authority to execute irrigation projects.
Jitendra Sonal, then minister for physical infrastructure development at the province, filed the petition after the Department of Irrigation, which falls under the federal government, issued a tender to implement the Prosperous Tarai Madhesh Special Irrigation Programme. However, the court has yet to start a final hearing on it.
The fact that the first hearing of the petition filed by Lamsal was held a month later, on November 29, suggests the sluggishness of the Constitutional Bench, according to constitutional lawyers. They argue that the Constitutional Bench, despite having an extremely important job, is largely ineffective. Senior advocate Dinesh Tripathi, who also is the chairperson of the Constitutional Lawyers’ Forum, said the court’s delay in passing a verdict is one of the different factors affecting full-fledged implementation of federalism.
Earlier there was a practice of convening the Constitutional Bench twice a week on Wednesday and Friday. However, of late, it sits only on Wednesdays, and that too irregularly. “Not just the Constitutional Bench, the entire judiciary is insensitive when it comes to settling important federalism-related issues,” Tripathi, told the Post. “The judiciary’s role in strengthening federalism is unsatisfactory. It has failed to take a stand as a temple of justice.”
https://kathmandupost.com/national/2023/10/31/federalism-related-disputes-pile-up-at-supreme-court
