Constitutional Court: For Judicial Reform 

Some of them have become powerless structures, which are unable to gain public respect, compel compliance with their decisions, or check politicians misusing the power.             &nbs

Feb. 28, 2011, 5:45 p.m. Published in Magazine Issue: Vol. : 04 No .-17 Feb.25-2011 (Falgun 13,2067)

Constitutional Courts adjudicate constitutional questions and enforce constitutional provisions, which make the constitution a living document that guides the exercise of political power rather than being merely a collection of fine phrases that symbolize aspirations.

An issue which has recently become the subject of debate is whether there should be a separate Constitutional Court or not. Recently the seven-member high level taskforce came to the conclusion that the Judiciary will interpret the constitution. However, the taskforce remains silent as to whether the Supreme Court or the Constitutional Court should interpret the constitution. There are many democratic countries which have established Constitutional Courts. At present, the Supreme Court is the highest judicial body in Nepal for ultimate hearing and interpretation of the constitution. As Nepal has chosen a federal structure instead of being a unitary state under article 138 of the Interim Constitution of Nepal, there will be conflicts among the centre and states, so interpreting the article and settling the dispute on the Constitutional Court are necessary.

We are aware of the fact that in Nepal, the trend of knocking on the door of the Supreme Court over minor issues is quite common. This ultimately leads to delay in justice. At present, there are more than 8,000 cases pending in the Supreme Court of Nepal. So in order to establish a quick justice system, there is the need of a Constitutional Court in Nepal. Justice delayed is justice denied, as they say.

Every country has a history behind the establishment of a Constitutional Court. However, in general, the establishment of a Constitutional Court is initiated by a process of political change from authoritarian power to a democracy. The main function of the Constitutional Court is to maintain a consistent performance of the constitution and that this is done responsibly by each state administrator. Furthermore, that must be in accordance with the demands of people and the aspirations of a democracy.

There are mainly four triggers for the foundation of a Constitutional Court:

The Ideal of Constitutionalism
The concept constitutionalism is that government officials are not free to do anything they please in manners they choose, but they are bound to observe both the limitation on power and the procedures which are set out in the supreme constitutional law of the country. First, it limits the government under a higher law and second, for civil rights guaranteed under constitution, state authority should be limited by constitution and legitimized by constitution. Thus establishing a Constitutional Court is to accomplish the principle of constitutionalism which ultimately resolves the obstacles related to constitution and state administration.

Check and Balance Mechanism
Check and balance enumerated under constitution is one of the characters of proper governmental system. It guarantees that no part of the government becomes too powerful. Check and balances help a group of interested individuals hand the reins of power over to another group of individuals and allows them to keep tabs on the operational activities and choices made. The implementation of check and balance principle is required to ensure that there is no overlap among the existing authorities. Thus Constitutional Court, being a part of judicial authority, will encourage development of check and balance in administration.

Good Government
In order to have a good government, there should be a clean, transparent and participatory state administration .The Constitutional Court will examine duties and functions of public authority and encourage them to work in the interest of people.

Protecting Human Rights
Discretion leads to arbitrariness and, ultimately, to violation of human rights. Thus, the Constitutional Court helps to limit the state action and refers to democratic principles as well as respecting and protecting human rights.

Constitutional Court would be an essential institution for safeguarding the constitution, consolidating the rule of law and strengthening the democratic process in Nepal. In a welfare state, citizens see the court as the place that recognizes their voice in politics. Having a Constitutional Court, which gets complaints from citizens, is necessary for establishing democratic institution. A person, whose constitutional rights have been affected, can approach the Constitutional Court to seek relief from state action. A person can approach the Constitutional Court with claims of law under which a state official’s action was unconstitutional.

There are many Constitutional Courts all over the world, but not all have achieved their goals. Some of them have become powerless structures, which are unable to gain public respect, compel compliance with their decisions, or check politicians misusing the power. And others have become, essentially, instructive political actors, dictating in detail what legislators and executives must or must not do, neglecting the popular will, and accumulating power to themselves. In the end, this leads to the political neutrality of the courts, making the Constitutional Court itself a political issue, and threatens the rule of law.

Thus, if the lawmakers want to have a Constitutional Court in Nepal then it must be designed in such a way that it has adequate powers and a proper relationship to the other branches of the government and to the citizenry. But one thing must be kept in mind that the Constitutional Court won’t have fully speedy trial because judges must be specialized, not the court.



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