War of the courts Unavoidable conflict

DR GYAN BASNET

Dramatic progress in the integration and rehabilitation of former Maoist combatants within the Nepal Army has intensified the debate over the writing of the country’s new constitution. Only a few weeks remain before the Constituent Assembly’s deadline to draft the new constitution, and the country is plunged once again into doubt about its timely delivery. Questions of form of governance, organization of the judiciary, and restructuring of the state are major bones of contention currently among the political parties. The Maoists have proposed a legislative controlled judiciary while the Nepali Congress (NC) stands for an independent judiciary as at present. Most importantly, all political parties have agreed to establish a constitutional court that would be set above the Supreme Court, a plan to which judges of the latter are naturally opposed.

Establishing a separate constitutional court in the country may be looked upon as an improvement in democracy and the rule of law. It is also a typical feature of constitutionalism. However, it will inevitably raise questions about the distribution and sharing of powers at the highest judicial level. Before acting, therefore, we must think about some very important questions: Is the end result predictable? How effective can it be in a country like Nepal where often we may be seen to lack institutional commitment, political sincerity, even a political culture and professional ethics? In international experience, e.g. in Russia and South Africa, constitutional courts have already failed to produce positive results. What evidence is there that a new one in Nepal would be any more successful?

Nepal has little established political culture: institutionally and individually we lack professional ethics, and our society is undermined by political ‘bhagbanda’. What chance is there that the politicians would not recklessly misuse the constitutional court to serve their own narrow political interests? The court’s

first task would have to be to ensure its own survival. There is a distinct possibility that it would be forced to

divide itself into different doctrinal or ideological camps and lack a single, coherent strategy.

The role of any new constitutional court would have a huge impact on the structure and functioning of the existing judicial branches. No genuine separation is possible between constitutional jurisdiction and ordinary jurisdiction. The role of a new constitutional court could be beneficial in protecting individual rights and liberties, but it would complicate relations considerably within the judicial branch. There may be several areas in which both jurisdictions would have to act in parallel, and the constitution itself could provide a clear distinction between their tasks and responsibilities. However, the constitutional court of Nepal would operate on ground already occupied by the Supreme Court, and it would inevitably try to interfere with well-established practices of the judicial branch. That clearly would create huge structural, functional and jurisdictional problems.

Experience shows that, where constitutional courts have been established in post-authoritarian countries, a pattern of conflict between constitutional and supreme courts has emerged. One may argue that all cases and controversies of a constitutional dimension should be resolved within the constitutional court while those involving the application of ordinary legislation should belong exclusively to the ordinary courts. However, it is not as simple as that. In almost all countries that have established a separate constitutional court, that court’s powers eventually intervened in areas traditionally controlled by the Supreme Court. Finally, is the constitution to be regarded as the supreme law of the land or merely as a tool to be manipulated by the politicians? The constitution is the state’s highest legal norm: it reflects the people’s choice of political and social principles that govern the state’s administration. It is more than a political document: it is law. It identifies both the individual citizen and the society as a whole. It represents the structure of the state, and it defines essential social, economic, and development parameters. Is it really possible, therefore, to draw a clear demarcation between constitutional law and the remainder of the legal system? The former influences the entire structure of the latter. Therefore the functions of a constitutional court and those of other courts must overlap, and inevitably cause tension and conflict in the state’s justice system.

It is vital that we look for a possible solution that can achieve dynamic reform within the existing judiciary without a new constitutional court. For nearly six decades the Supreme Court of Nepal has been able to maintain mutual respect between the three branches of government and to provide justice despite some fundamental flaws, inconsistencies and controversies in its interpretation of the constitution. Judicial reform in Nepal may be urgent, but we do not have to destroy or replace everything that we have with new values. Our country is not a laboratory for testing systems that we have never experienced before. It would be wise not to rush to establish a separate constitutional court. If that does happen, it will be politically short-sighted, practically unproductive and socially complex: it could even be legally suicidal.