Our constitutional institutions—Parliament, Election Commission, Constitutional Council—have now become arenas of political participation. When these institutions lose their independent identity, the last hope of the citizen lies in the courts.
What you should know
The separation of powers is like the foundation of a house, where the legislature, the executive, and the judiciary stand as the three main pillars. This is called the ‘separation of powers’. This principle is not just a technical matter of dividing power, but rather a sophisticated democratic mechanism by which one branch checks and balances the other.
However, when the two main pillars of the house, the legislature and the executive, start to shake under the weight of political interests, party affiliation and ‘crony capitalism’, then the entire burden of the roof is piled on one pillar of the judiciary.
To understand this, we need to understand the ideological conflict of two great philosophers in the background, which has divided today’s global jurisprudence into two streams. On one side is Hans Kelsen, who considers an independent constitutional court to be the final guardian of the constitution. His ‘Pure Theory of Law’ says that every act of the state should be bound by a fundamental law. In Kelsen’s view, the judiciary is a neutral and technical organ that keeps politics within the ambit of the law.
On the other side is Carl Smith, who says that in times of crisis, a ‘political decision-maker’ (the head of state or executive leader) should be the real guardian of the constitution. According to Smith, strict legal texts alone cannot solve the crisis of political existence and the sovereignty of the nation.
Nepal's constitutional journey has witnessed a clash of these two ideas for the past three decades. When political parties try to bend the clear provisions of the constitution in the name of 'political consensus', Smith's 'decisionism' tends to prevail. In such a situation, the court must use Kelsen's rule of law to prevent the constitution from becoming a paper of compromise between political leaders.
Political parties are currently trying to hide their failure by accusing the court of 'judicial activism', but the process of political disputes entering the courts in Nepal is very interesting and ironic. Often, internal conflicts between parties, power struggles, and political protectionism cause other state institutions to stop working.
When politics cannot clean up its own mess, the judiciary is responsible for cleaning up that mess. For example, when the Election Commission is afraid to resolve the dispute over the party's official status or name in time due to political pressure, when the President ignores the clear claim of a majority in Parliament in the name of 'self-restraint', then the aggrieved party and the conscious civil society have no choice but to go to Ramshahpath.
Our constitutional institutions—Parliament, Election Commission, Constitutional Council—have now become arenas for political division. When these institutions lose their independent identity, the last trust of the citizen rests on the court. Let's think about it, what would have happened if the court had not intervened?
– If the court had remained silent when the President called the signatures of 149 MPs 'incomplete', would democracy have survived?
– If the court were to remain silent when the Speaker loses impartiality, where would parliamentary values be ?
– If the court were to become a mute spectator when criminal cases are withdrawn in the name of ‘political consensus’, what would the country be like with ‘impunity’ ?
When the parliament cannot use its discretion, when the executive takes away the respect of the constitution in the name of ‘political consensus’, then the court’s compelling journey begins . Therefore, this burden imposed on the court is actually the product of the helplessness of the executive and the legislature . Thus, the court becomes the last resort . Some critics call it ‘juristocracy’ or ‘rule of judges’, but if we look deeper, it is the product of zero accountability in our country .
When politics cannot clean up its own mess, the responsibility of picking up that mess falls on the judiciary . A serious question arises here whether the court can refuse to pick up the mess ? If he washes his hands of the issue as a political issue, there is a risk that the entire constitutional house will collapse and the country will fall into the abyss of anarchy. Therefore, the activism of the judiciary in Nepal is not just an exercise of power, but rather a constitutional rescue operation. Which has worked to fill the 'democratic deficit' seen in the political process. However, the extent to which the court's decisions provide a solution is determined by its public trust and future.
Because judicial activism has serious positive and negative consequences and effects. On the one hand, it has kept 'constitutionalism' alive and has instilled the ultimate belief among the common citizen that 'there is a court for injustice'.
For example, if we look at the past related to the activism of the court, it has provided a solution to many obstacles. The court has punished dozens of illegal acts such as not allowing the government to be formed in the name of 'no vote' for 16 times, making the parliament inactive, not allowing the term of the Constituent Assembly to be extended indefinitely, and not prosecuting cases due to political influence.
However, what is worth considering here is whether political parties are losing their ability to make difficult political decisions by resolving everything through the courts? Have they started to indulge in the tendency to shift their responsibility to the courts? Also, when every small and big dispute has to be decided by the courts, the judiciary becomes politicized and even criticized.
The court has imposed a rod for dozens of illegal acts such as not allowing the government to be formed in the name of 'no vote' for 16 times, making the parliament inactive, not extending the term of the Constituent Assembly indefinitely, and not prosecuting cases due to political influence. Which also carries the risk of always making the judiciary 'politically biased'. Due to this, the game of 'political participation' in the appointment of judges becomes more fierce and ugly. This ultimately poisons the source of the independence of the judiciary itself. Therefore, when the court keeps talking like this, it also pushes the judiciary towards the risk of 'politicization'.
We want the institutions themselves to become strong, the MPs to rise above the party whip and use their discretion within the parliament, and the solution to 'political questions' should be sought in the political arena.
But as long as political parties exchange the constitution for power bargaining, when other organs of the state get caught in the quagmire of 'political protection' and 'partitioning' and forget their constitutional religion, then this reformative rod of the court will remain the last weapon to save democracy.
While wielding this baton, the main challenge today is for the court itself to rise above its institutional interests and the interests of internal appointments and follow the constitutional religion. Wherever politics goes astray, the court will have to bring it back on the right path. This is the destiny of our system and the need of the day.
But as long as political parties prioritize protectionism over constitutionalism, the court must be active. The responsibility of making institutions successful lies with politicians, and if they fail, the court must speak up. However, the game of deflecting the blame for one's own failure by making the court look like a fool must stop.
