Constitutional guardianship in Nepal

Nepal’s judiciary has an irreplaceable role in instilling a commitment to the rule of law and encouraging a new way of doing politics in the new federal system. But can this role be more public beyond the confines of courtrooms in Kathmandu and the provinces?

In addition to requiring a proper and substantive account from other branches of government, can the judiciary be instrumental in shaping norms and values in the New Nepal in a constitutional guardianship role?

Part 1: Federalism, rule of law and the judiciary, George Varughese and Iain Payne

The judiciary’s relationship to other branches of government shapes its ability to play a role in protecting the Constitution. While historically Nepal’s judiciary has, with a few notable exceptions, been cautious to confront or overrule executive action, more recent diffidence suggests additional losses in stature as well as in independence.

Successive governments of all political stripes have colluded in shackling the judiciary and relegating it to subservient status. Judicial sackings, impeachments, forced retirements and politicised appointments are some of the methods used. There is also a consistent pattern of governments and politicians impugning and defying court orders.

Leaders and functionaries of the judicial branch have also invited opprobrium on several occasions, leading to public criticism sometimes exceeding that levelled at executive and legislative branches.

The judiciary has an existential dilemma:  how to regain public trust not only as an institution of restraint on government but also as a trusted guardian of justice.

While the Constitution seeks to bring government closer to citizens through a polycentric federal structure, serious concern can be raised of obduracy and procrastination on the part of the federal government to meaningfully devolve power.

The future of inter-governmental relations will be shaped by the ability of the federation’s 761 governments to converse as coequals. Legitimate and credible dispute resolution will be critical for constitutionally-mandated cooperation and coordination among and between governments.

The Constitution creates several institutions to support and supervise inter-governmental relations. At the national level these include the Inter-Provincial Council, which brings provinces and federations together to settle political disputes, the National Natural Resource and Fiscal Commission, the constitutionally-mandated authority to oversee the allocation of the country’s resources derived from revenues and royalties, and the Constitutional Bench of the Supreme Court.

The Constitutional Bench is tasked with interpreting the Constitution, particularly for settling inter-governmental disputes and providing clarity and coherence to federated governance. However, internal politics have prevented the bench from functioning properly.

More than three years after the adoption of the Constitution, the Court has yet to embrace one of its most important roles: framing and shaping the course of constitutional federalism, particularly regarding intergovernmental relations. This has contributed to ongoing legal and jurisdictional paralysis, which hampers effective functioning of provincial and local governments.

The Constitution’s schedules, which delineate the division of constitutional power among the governments, are ambiguous. Disaster management, for example, is listed as both an exclusive responsibility of local government and as a concurrent power of the federation, provinces and local governments.

Whereas effects of disaster are manifested locally, the incoherence in disaster management begins with ambiguous delineation of responsibility in the law.

The ongoing dispute between Province 2 and Kathmandu over the establishment and governance of police forces is another example. This is likely to fester and grow across all provinces in the absence of legal clarity on who does what in a federation.

Such legal uncertainty has stymied lawmaking at the sub-national level. Apprehensive about their legislation being nullified by the courts or contradicted at the federal level, most local assemblies have restricted themselves to passing only procedural laws. One elected local representative recently stated: “Initially, we were very excited to make laws. Later we realised that our laws could be overruled by the court or even by the federal or provincial governments. Now we are confused, as we have to be very careful.”

The Constitutional Bench can provide decisive guidance in Nepal’s federation by, for example, supplying a constitutionally robust mechanism for sub-national governments to debate and contest laws that harm their constituents’ interests. The formal resolution of disputes by the Bench will require governments, particularly the federal government, to publicly justify the direction in which they are steering the federation.

For federalism to work, Nepal’s judiciary and the judges who lead it must embrace a culture of learning. This is perhaps most important for the Constitutional Bench, as its task to help navigate the complex jurisprudential issues that will arise in the newly federated system of governance will not be easy.

Like the rest of the country, the judiciary does not have institutional memory of federal governance. Judges, like the functionaries of the other executive and legislative branches, must learn on the job without the luxury of prior experience or preparation. Fortunately, there are quite a few respectable judges who give us hope. May those best suited to learning be given the chance to guide.

May the judicial branch have the confidence, courage and creativity needed to take on the role of constitutional guardianship, leading to a culture that is based on the principled exercise and accountability of governmental power.

This is the second of a three-part series by George Varughese and Iain Payne, who  are associated with Niti Foundation.