Constitutional Court Vital To Tackle New Challenges: Mukti Rijal

The judges of the Supreme Court have vehemently opposed the provision in the draft constitution with  regard to the formation of the constitutional court. The Full Court meeting, attended by the incumbent chief justice and senior justices of the apex court , the other day, rejected the constitutional  provision, complaining that it would create and pose problems in the administration of justice.  Parallel structureThe justices argue that it would stay and embed itself as a parallel structure to undermine and undercut judicial supremacy that has been more or less established and guarded irrespective of the irregular trajectory of political developments in the country. The draft contains a provision for forming a constitutional court chaired by the chief justice. It includes two senior-most justices of the Supreme Court and two judges appointed by the president at the recommendation of the Judicial Council.  Against this backdrop, it would be in order to refer to the fact that the Supreme Court had formed a panel composed of three justices of the Supreme Court headed by Judge Baij Nath Upadhyaya to examine, review and suggest provisions for incorporation in the new constitution of Nepal. The panel came up with a host of recommendations  bearing upon the court structures, Judicial Council, judicial accountability and the constitutional court.  As the draft provides a separate provision for a constitutional court, it has been feared that it would dwarf and diminish the value and importance attached to and the authority wielded by  the Supreme Court. Moreover, the Supreme Court as the final seat of judicial authority has been endowed with reviewing the acts of Parliament and declaring them ultra vires in case they contravene the provision of the Constitution. There have been precedents in the past when the Supreme Court has declared the act of Parliament as ultra vires and defended the rule of law firmly.  Moreover, the Supreme Court of Nepal has created history by challenging the illegitimate authority of the rulers, paving the way for the collapse of the authoritarian order in the country. The court had summoned the courage to declare illegal the act of then King  Gyanendra to constitute a commission to probe into what was alleged to be ill-gotten wealth of the political leaders.  Similarly, in several cases in the past, the court has even been found going beyond its normal boundary and poaching on political territory. Prominent among such cases is the reinstatement of the dissolved parliament by the bench led by Supreme Court chief justice late Biswanath Upadhyaya in 1995. The decision was charged as being politically motivated and guided. The parties opposed to the court ruling went to the extent of burning the effigy of the then chief justice as he was the main architect of the decision that had led to the collapse of the minority Communist government elected by the people.  Another decision of the Supreme Court having political ramifications had been the one that stopped the first Constituent Assembly from extending its term. Since the first Constituent Assembly elected in 2008 had failed to deliver the constitution, it saw its demise through the order of the court that disabled it  to seek further extension of the term. The order of the Supreme Court passed the other day to halt the process of drafting the constitution without finalising the boundary delineation and naming of the provinces has been interpreted as an act of interference in the sovereign authority of the Constituent Assembly to draft and enact the constitution.  These decisions of the Supreme Court in the past did sent ripples in the political sector, enraging some and pleasing others. There have been issues raised on the anomalies and corrupt practices in the judicial institutions, indicating the need to institutionalise the mechanism of  accountability and oversight in the court. The draft of the new constitution envisages provisions that seek to address some of the issues raised time and again in connection with reforming and toning up the judicial institutions.

But this has been perceived by the justices of the Supreme Court as a move towards taming the judiciary and taking its independence away. Moreover, the issue of requiring the justices to seek renewal of their term or mandate after the enactment of the new constitution has sent shivers down the spine of the judges. In fact, the judiciary in Nepal has become very powerful and has exercised absolute independence following the change in 1990, and the Interim Constitution too has upheld, maintained and further reinforced the same spirit and provision.  Moreover, it has been alleged that the institution of the judiciary has become corrupt with very negative repercussions in the administration of justice in the country. The issue of instituting a separate constitutional court has been brought to the fore to keep the proposed federal court from dealing with complex constitutional issues in the new dispensation.  In the federal system, new types of judicial issues and disputes like constitutional disputes between the centre and provinces, inter-provincial disputes, disputes between the local government and provinces and so on have to be heard and resolved. The Supreme Court of Nepal with its existing load and capacity may not be able to undertake such an onerous and burdensome challenge. As a consequence, the constitutional court has been proposed in the draft.  Be positiveAs the new democratic republic constitution needs to deliver promises to the people to tackle the new challenges of the situation, the proposal for a constitutional court needs to be looked at positively. Many countries like South Africa, Germany and Russia have adopted it, and with success, too.

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