The Supreme Court in Constitutional Politics

<br>Dr. Surya Dhungel

Dec. 28, 2011, 5:45 p.m. Published in Magazine Issue: Vol. : 05 No. -12 Dec. 23-2011 (Poush 08,2068)<BR>

In less than twenty years the American Supreme Court changed its judicial policy of restraints reinforced by Justice Frankfurter in Colegrove vs. Green (1946), as ‘self-imposed limitation upon judicial power… to enter the political thicket’. The dissenting opinion of Justice Black became majority view within two decades in Wesberry vs.Sounders (1964). Not only the leading judgment of Baker vs. Karr (1962) providing affirmative answer under Equal Protection Clause,  the Warren Court went further inReynolds vs. Sims (1964) ‘to fashion a new American Constitution’ through judicial amendment. Treaty termination issue in Goldwater vs. Carter (1979) was treated by court as ‘non-judicial political question’ through judicial self-restraint. No wonder President Woodrow Wilson once appreciated the judicial statesmanship and vision of the Supreme Court by saying, ‘the Constitution has been more than “a mere lawyer’s document, it has been a vehicle of the nation’s life”. 

The Indian Supreme Court turned out to be more progressive in dealing with ‘political question’ issue since 1973 while shaping the New Indian Constitution through ‘basic structure doctrine’ through Keshavanad Bharati Case, which has now been expanded to even  designing ‘free and fair electoral process, and the sovereign, democratic, republican structure’ (Kihota Hollohon vs. Zachilhu, 1993) . Judicial Activism in India has emerged as a big challenge before the representative Parliament, a co-equal organ, in constitutional competency as well as in safeguarding the rights of the people. Nepal is no exception to this.

The Interim Constitution of Nepal has given more leverage to the judicial branch than any other modern Constitutions of the world. The wisdom of the Nepali Constitutional draftsmen and revolutionary restored parliament is immanent in the Interim Constitution 2007 which coined the Article 100 (2), as it says: The Judiciary of Nepal shall be committed to this Constitution by recognizing the concept, norms and values of the independent judiciary, and by realizing the spirit of democracy and the aspirations of the people’s movement (ie, jana andolan). The very core task assigned to the Nepali Judiciary by the Interim Constitution is to help realize the ‘spirit of democracy and the aspirations of jana andolan’, which in fact happens to be the basic feature of the Interim Constitution. By virtue of this very provision, the Constitution makers have barred the politicians to criticize the Supreme Court on the ground of it entering into ‘political thicket’. The only limits on the Supreme Court on the issue of political question are thus the ‘doctrine of judicial self-restraint’, ‘principles of justice’ and the ‘written words of the Constitution’ itself. The irresponsible utterances and actions of the political wing therefore always tilt the constitutional balance in favour of judicial wisdom. Hence, the judiciary needs to be more responsible and accountable to the Constitution and jana andolan than ever before.

Theoretically, all democratic countries with a written Constitution recognize the concept of constitutional supremacy. The scheme of constitutional governance in these countries is laid down in the concept of separation of powers, the rule of law and exclusively safeguarded fundamental human rights. While the civil law countries rely much on the wisdom of the representative legislators in clearly formulating the words of the Constitution and law, the common law countries on the other hand trust the independent and impartial judicial tribunal for giving the final meaning to the words of the Constitution. Hence civil law courts simply apply laws for the parties in dispute. But the common law courts develop ‘court jurisprudence’ in the form of judicial precedents through judicial creativity and interpretism, which are missing in sub-servient socialist judiciary also.  Such systemic differences have immensely strengthened common law courts in general. Problems occur only when politicians fail to respect the Constitution and rule of law, and when judges also cross the boundary to enter the ‘political thickets’ and expound new constitutionalism.

The Supreme Court in the case of Vijay Shakya and Kamalesh Dwibedi vs. Prime Minister (18 Kartik 2067 BS) entered the ‘political thickets’ without any judicial restraint and mishandled the ‘political question’ issue involved in the case by unduly endorsing the power of the Legislature-Parliament to amend the Interim Constitution under Article 148. This amendment power was used to extend the tenure of the Constituent Assembly for an unlimited period. Trapped in the task of writing the wrong, the Supreme Court dived its nose further deep into constitutional politics under the thickets of “doctrine of necessity” in subsequent cases filed one after another by Bharat Jungam and Balkrishna Neupane  during the past several months to nullify the ninth and tenth constitutional amendment bills extending the CA’s tenure as passed by the Legislature-Parliament. The dilemma of the court was how to balance the interest of the nation engulfed in transition under the Interim constitutional framework with the extra-constitutional actions of the coequal branch, the Legislature-Parliament. The responsibility of the court was big because the divided house of the politicians had put both the Constituent Assembly and the peace process into hostage.

Despite several weaknesses, both substantive and procedural, the Supreme Court eventually offered three options before the CA and the coalition Government, again under the weak and fragile ‘doctrine of necessity’, however, supported by another doctrine of ‘reasonable expectation’ of reciprocity from co-equal branches of the state. The nation has accepted now that last extension of six months is reasonable for CA to complete its tasks. And references to other three options, such as referendum, fresh electoral mandate and other possible constitutional discourses to resolve issues given by the Supreme Court are in fact judicial directives to the legislature-parliament, Government, CA and other stakeholders to examine the words of the Interim Constitution between the lines, to review CPA and all other agreements in order to find out ways to produce a new Constitution within the specified timeframe. It’s the challenge before the legal luminaries, not the politically partitioned amicus curies assigned by the Bar Association, to rightly advise the reluctant CA.

Political scientists strongly resent against the concept of judicial supremacy in the exercise of state power. Popular supremacy for them is reflected through the representative institutions, whether it be the elected parliament or the national congress. The Constituent Assembly is of course a sovereign representative body but its exercise of unlimited constituent power will be reflected only in the Constitution that it produces in a prescribed manner. The amending power of the prevailing Constitution, however, is a legislative function which, in the case of Nepal, an odd legislative wing of the Constituent Assembly, called Legislature-Parliament, is allowed to perform. Amending power is always limited.

In conclusion, when the post conflict nation in trsnsition is languished in absence of political statesmanship and visionary leadership, thanks to the Supreme Court for its attempt to open avenues through judicial discourse, again to borrow the words of Woodrow Wilson, for its ‘judicial statesmanship’ with vision displayed during crises. Critiques of the judgment on tenth amendment are welcome, but the court’s views shall prevail. However, the politicians and CA members must not forget that all justices as citizens of Nepal have equal right to exercise constitutionally permissible sovereign power in the interest of nation, as much as a CA member thinks he or she has as an elected representative. The Supreme Court spoke because the CA members failed to respond to the historic opportunity. It would be unfortunate if CA appeals to the Supreme Court to review its special bench’s opinion, as reported in media.

Dr. Dhungel is a Constitutional Lawyer, and may be reached at (

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