" The politicians are increasingly adopting a big brotherly attitude - big brotherly because they are taking a similar course for the second time after being spurned by the court the first time. Whether it be the dissolution of HoR or the showing of majority in Koshi, the disregard for the court is clearly visible "
The legislature, the executive and the judiciary form a trinity in parliamentary democracy. Its heart beat is the tripartite doctrine of power separation of these three propounded by Montesquieu. These three should be able to intersect one another without losing their respective independence. None of the three should look upon one another as opposed to each other.
But in Nepal, all three, and especially the executive and judiciary, are seen to lock horns most of the time. The inability to hold former prime ministers Madhav Nepal and Babu Ram Bhattarai responsible in the Lalita Land Scam, despite the order of the Supreme Court when Bhattarai, in particular, had offered to face any eventuality, is a glaring example.
Both the former prime ministers were interviewed but are merely held as witnesses in the whole investigation case, citing it as a policy decision. In stark contrast, the others have been facing court cases, for example, the secretaries who merely present the agenda, and the decision, whether it be policy or otherwise, is taken by the minister.
This is only a representative sample when it comes to the confrontation of the judiciary and the executive. The present tug-of-war between these two vital organs of parliamentary democracy in the majority showing of the Government in Koshi Pradesh is another example of this old rivalry. The government led by Uddhav Thapa reenacted a K P Oli phenomenon by repeating the same political highhandedness when it has already been declared unconstitutional by the Supreme Court.
The dissolution of the Parliament by former prime minister Oli and the chorus provided by former president Bidhya Bhandari on two occasions, when it was already slapped by the Supreme Court in the first instance, shows the disregard shown by the executives to the judiciary. These are the more recent incidents, but there are many such instances enacted in the political arena of Nepal. One of the most notable is the reinstatement of the Parliament when it was dissolved by former prime minister Manmohan Adhikari back in the nineties.
Neighboring India, the largest democracy of the world, has also fallen victim to this political malady. The declaration of Emergency by the late prime minister, Indira Gandhi, in 1975 to counter the verdict of Justice Jagmohanlal Sinha unseating her from the Lok Sabha due to her misuse of government election machinery is a case in point. She had to suffer a humiliating defeat in the following poll.
The violation of judicial or social and cultural norms by the executives has led to the fall of ruling dynasties in the past. One can take the case of the Rana regime, which had to exit from the political scene despite ruling for 104 years for unleashing repressive acts to quell people's lawful rights. Similarly, Panchayat democracy had to breathe its last soon after the observation of its silver jubilee.
The system, which had stood on the repressed back of the multiparty polity, ended up digging its own political grave. Several criticisms have been dumped on the judiciary by the executive. The first one is the undemocratic nature of the judiciary.
Whilst the executives boast that they derive legitimacy from the election by the people, the same is not true of the judiciary. Hence, it is unbecoming for the undemocratically established judges to squash the decision of democratically-elected executives. To this, the judiciary opines that the executives do not enjoy the majority support of the voters, let alone the people. In many countries, the parliamentarians get elected on a first-past-thepost basis, and hence this issue of democratic legitimacy of the political branches versus the judiciary does not hold much steam.
The second criticism is certainly the judicial overreach. The judges may address the questions that may otherwise be addressed by other branches of the government and thus may fail to show regard to other institutions. They may have less regard for precedents, ending in the exercise of judicial activism.
The rule of law requires the courts to uphold the statute, and thus the revision of the statute book is the parliament's job and not of the court. This argument is also overstated in view of the checks and balances mechanism inherent within the judicial system.
The third criticism is, of course, the institutional one. It holds that the courts are neither apolitical nor neutral on account of the political composition of the judiciary. Judges, being a part of the machinery within the state, cannot avoid making a political decision.
The skill of the court lies in making apolitical performance despite being in a political environ like a referee in a tournament despite an alliance with a particular team.
However, the politicians in Nepal are increasingly adopting a big brotherly attitude with the result that they often land in a headon collision. Big brotherly because they are taking a similar course for the second time after being spurned by the court the first time. Whether it be the dissolution of the Parliament or the showing of the majority in Koshi Pradesh, the disregard for the court is clearly visible. Nepal has thus been fighting a war on two fronts.
One front is certainly that of the economy which appears very fragile despite encouraging remittances sent by Nepalis working abroad. The flight of the younger generation to foreign countries has further added to the country's woes.
The other front is the devaluation of democracy, which is exemplified by the irresponsible behavior of the front-running parties, pitting the judiciary against the executive. It is unfortunate that the country has come to such a depressing pass despite their complementary nature.
A version of this article appears in the print on August 29, 2023, of The Himalayan Times.
