The Supreme Court on Friday ordered the government, the Constituent Assembly and concerned political parties not to implement the 16-point political deal stating the issues like delineation and nomenclature of provinces should be settled before the dissolution of CA since the deal on forming eight provinces, assigning provincial assemblies to name them and forming a federal commission to finalize delineation would be against Article 138 of the Interim Constitution.While issuing the interim order, a single bench of Justice Girish Chandra Lal has accepted the deal between the four major parties as a constitutional and legal issue and described it as contradictory to Article 138.
However, the order contradicts with the verdict of Supreme Court on November 5, 2006 on the writ petition filed by Advocate Chandra Kanta Gyawali demanding order for formation of a commission to make suggestion on state restructuring as per Article 138.
A single bench of the then Chief Justice Kedar Prasad Giri had quashed Gyawali's petition stating that the Article 138 should be approached holistically. "Constitution is not only a legal document but also a document of political agreements. Some provisions in the constitution are kept away from the jurisdiction of the judiciary by the constitution itself while the judiciary should maintain principle of judicial restraint in deciding some cases," stated the seven-year old verdict.
"Court should obviously give final and universal decision if any controversies appear regarding legal and constitutional provisions but stating it the court should not intervene in all issues," said the verdict.
The verdict had also stated that it would be better for the court to stay away from the political issues and defined the provisions of Article 138 as a political subject matter.
"The verdict given while quashing my writ petition is not overruled yet by the court. As there is no overruling, the verdict remains as a precedent. The court should follow the precedent," said Advocate Chandra Kanta Gyawali.
"The recent order of the Supreme Court contradicts with the precedent. As per the precedent, the writ petition against the 16-point deal should have been quashed but the court issued interim order going against its own precedent," said Gyawali.
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