Supreme slip  


When you dig a hole on your own turf, you might as well be the first one to fall into it. The Supreme Court (SC) dug out such a hole for itself when it agreed, by invoking the ‘doctrine of necessity’, to extend the term of Constituent Assembly without a fresh mandate. Though comical in appearance, this verdict is a setback for both the court and for the people who believe in the rule of law. It is also a sad development for a country that has been trying to institutionalize democracy. 

While dictatorships have kangaroo courts, democracies take pride in having independent judiciary to defend the constitution and ensure rule of law. Judges enjoy job security so they can maintain ther independence and decide cases based on legal merit rather than fear or political pressure. Whenever they have a personal interest in a case, they rescue their independent image by letting someone else handle it. At least that has been the practice in true democracies.

Nepal is yet to become a true democracy. Every time Nepali people fought for and won the battle for democracy, someone else hijacked it before it could be institutionalized. People toppled Rana dictatorship in 1951 and established democracy, but Mahendra strangled it. In 1990, they restored democratic rights and civil liberties once again, but the Maoists hijacked it in the countryside and King Gyanendra in urban areas. They won democracy it back again in 2006, but now “new royals” are again trying to take it away. 

In many countries, after the abolition of monarchy, new royals have replaced old ones. Muammar Gaddafi removed King Idris in Libya in 1969 and his near and dear ones would rule as a royal family until the rebels pulled him out of a drainpipe and killed him. Several years after the overthrow of Faizal II of Iraq, Saddam Hussein emerged as a strongman in 1979. He and his family ruled that nation as new royals until the Americans pulled him out of a rat hole where he was hiding, only to be hanged later. The Kims have been a royal family in communist North Korea.

In Nepal, political leaders often see themselves as new royals. The ousted, low-lying Queen Komal must be envious of the high-flying new Queen Hisila Yami who reportedly overshadows her prime minister husband. Prachand’s whole family acts like new royals; Sujata Koirala acted like a princess when Girija Prasad Koirala was around. UML and other parties exhibit similar tendencies. Besides, political leaders view courts as a nuisance and want to bring them under direct political control. Political-criminal nexus frightens judges and citizens. In this situation, judges naturally feel the pressure to protect their interests by watering down or abandoning legal principles in a way that pleases leaders. 

Fear is the enemy of independence. The SC is not immune from such fear, which has made it weak like never before. Even under the party-less panchayat system, only the palace was above it. Now SC justices are worried about their safety and job security. Under the new constitution, they will have to be appointed again. Like others, they are also concerned about the delay in writing of the constitution. As everybody else, they should be able to protect their interest and express their concern. If so, why is wrong with the recent verdict? It is that the court tried to protect its interest and express its concerns by using questionable means and principles.

Evidently, the SC should have used other means, not a court case, to express its political concerns. As before, it questioned at length the legality of the extension and still put a stamp of approval on it, though warning that it was doing so for the last time. The verdict pleased the most those who never believed in constitution, independent courts and rule of law. It also proved the court was neither the defender of constitution nor the protector of people’s rights. 

The verdict is full of flaws and contradictions, but three of them are legally important. First, the court has neglected two basic legal principles: The due process and the need to avoid conflict of interest. The due process would have required the court to ask the CA to dissolve itself and go to the people to get a fresh mandate. When the court approved term extension through amendment of the Interim Constitution under Article 64, it allowed the CA members to extend their own terms, creating a huge conflict of interest. To do so, the court followed the weakest of the legal principles, the principle of necessity, a handy tool of dictators. In democracies, in order to avoid conflict of interest, any extended term applies only to those who are elected after such a decision has been made, not to sitting members. 

The CA is guilty of resorting to political expediency and neglecting constitution writing. But it is the Supreme Court which has made a mockery of the constitution and rule of law.

Second, the SC overstepped its constitutional boundaries in its sermon to the CA. According to the principle of separation of powers, the CA has the obligation to write the constitution on time and make laws as needed, while the SC has to decide on time the constitutional and legal cases brought before it. The CA has taken more time to write the constitution than originally promised, but it is only a little over three years old. The SC, on the other hand, takes decades to decide on cases. 

In keeping with the separation of power, the CA has shown the decency of not criticizing the SC for inordinate delays in court cases. The SC should have reciprocated the gesture with similar decency on legislative matters. What is more, the case before it did not ask the court to criticize the CA or question its commitment to write the constitution; it only asked the court to determine the constitutionality of the CA’s term extension. 

The SC has admitted in the verdict that it allowed extension of the CA’s term for six months based on the tenth amendment to the Constitution. If the tenth amendment was okay, how can the eleventh amendment be objectionable for the same purpose? That is not all. The verdict reads, “The bench hereby orders that the CA can extend its term for one last time based on the proviso incorporated in Article 64 of the Interim Constitution.” Why one last time? 

Which article of the Interim Constitution confers the apex court the right to order the CA what it must do? If the CA needs more time to write a good constitution, it should be given that. But only after fresh mandate from the people. This was the right course that should have been taken two years ago and it is the right course now. The SC’s verdict raises serious doubts about the consistency of its decisions, which constitute precedents having the force of law. 

However, this is not the first time the SC has gone into political activism. When the then-Prime Minister Manmohan Adhikari’s recommendation to dissolve the house of representative was challenged, the court had gone beyond the constitutional question and opened a Pandora’s Box, which resulted in greater political instability and increased corruption. The court’s political activism could prove to be even more damaging this time as it strengthens the hand of those who don’t believe in independence of courts, rule of law and democracy. 

Third, the court has said, “The CA is found to have seriously undermined the SC’s previous verdicts regarding CA tem extension and the public aspiration for promulgation of a new constitution through the CA.” If the CA was undermining the SC, what did the court do to see to it that its verdicts were respected and implemented? The verdict has invited protests and jeers and tarnished the court’s image. 

The CA’s decision to extend its term by amending the constitution was unconstitutional and illegitimate before and it will be so again. That is also clear from the court’s complaint, which reads, “CA has made a mockery of Constitution, rule of law and the governance accountability to the people.” This statement is comical at best. If the court knew the CA had made a mockery of constitution and rule of law, why did it approve of such mockery in the first place? 

No doubt, the CA is guilty of taking the road of political expediency and neglecting the task of writing the constitution. However, it is the SC that has made a mockery of the constitution and rule of law by approving a wrong decision and applying a wrong principle, which has undermined its prestige, legitimacy and authority. While the SC, trapped in its own precedent, may not be able to prevent the CA from extending its term again, it can certainly prevent itself from falling into the kind of hole it has dug out and from becoming a laughing stock, yet again. 

Each of the two authors has served in the capacities of ambassadors and foreign secretaries of Nepal

Published on 2011-12-17 01:15:19

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