Guardian of justice
New turmoil has hit our nation as both the government and the Constitutional Assembly, two major organs of the state, are at variance with the Supreme Court regarding the latter’s refusal to register the petition to review its ruling over the term extension of the Constitutional Assembly. The political parties have accused the judiciary of entering politics and of undermining the rights of the Assembly. They claim that the highest court has trampled upon the Assembly’s jurisdiction, and, in so doing, has created a crisis that is not positive at a time when the country is involved in the long political transition towards peace and a new constitution.
It is to be regretted that, by a reckless use or abuse of its constituent powers, the Constitutional Assembly has so far failed to convince the nation that it can produce a visionary constitution dominated by democratic values. The political parties have failed to exercise their minds beyond the narrow confines of their parochial ambitions, and, by a display of not particularly clean political tactics, they have already delayed the outcome by over three and a half years. However, the recent move by the Supreme Court has raised very serious questions. Should the role and jurisdiction of one organ of government be dominated by another because of a failure of the former to act properly? Shouldn’t we look for answers to political problems within the political arena itself and not elsewhere?
In a constitutional democracy, it is vital to maintain the separation of powers between the legislative, the executive, and the judiciary with proper checks and balances. However, in the present circumstances further questions are raised. Is there a moral and constitutional basis whereby a bench of five unelected judges can decide the fate of the country? How can they become directly accountable to the people? How can they represent the voice of the people? In the concept of the separation of powers where exactly does one role end and another begin?
The role of the judiciary is to interpret and apply the law. Judicial review is the supreme power that is vested in the judiciary under the democratic system. It is the means by which courts are able to control the exercise of governmental power, to ensure that all legislation complies with the constitution, and to safeguard citizens’ basic human rights and fundamental freedoms. However, there are questions ‘political in nature’ that are wholly outside the purview of the courts. The constitution vests authority to decide some constitutional questions in the political branches because of their unique institutional characteristics and strengths: this gives rise to the ‘political question doctrine’.
In the democratic system, the judiciary is not above the people. Its task is to interpret and to apply the law as legislated by the political wing of government, which is itself subject to the sovereignty of the people. Constituent power is by nature legislative power, and the judiciary can never exercise that. The judiciary can neither limit the power of the legislature, nor should it tell the legislature what it should do. Democracy thus has its roots in the people, and it is the will of the sovereign people that guides and gives succour to the democratic process.
The recent Supreme Court decision over the term extension of the Constitutional Assembly may apply undue pressure on politicians, lawmakers, and political parties to complete their task on time. The possible consequences - political, constitutional and socio-economic - could be great if the Constitutional Assembly fails to provide a draft constitution and to complete the peace process within the given time. Another question must then be asked: has the judiciary thought through the possible political consequences if this happens? Who will be blamed if the constitution and the peace process are not completed within the six months? Failure could leave a political and constitutional vacuum in the country and be the cause of further crises if the ongoing political transition has to be extended further. If the Supreme Court did not foresee a possible political vacuu, it was seriously lacking in vision, and it has left them walking on razor’s edge.
In democratic practice, the judiciary is not a source of power. The Constitutional Assembly currently is the body which represents the people, and its continued existence must not be at the mercy of the judiciary. The impetus for political solutions must come from the political process and not from the judiciary. Judges are accountable to no one. The Constitutional Assembly is accountable to the people. It is the only legitimate body in the country that has been elected for the duration of the political transition: the remainder, including the Supreme Court, are merely temporary and their nature and functions will be re-defined. Thus, power lies with the Constitutional Assembly and not the judiciary. However, the political parties also must learn from this: The best solution is to commit themselves to completing their mandate on time. In case this should fail to happen, though, the Assembly must prepare in advance to tackle the political vacuum that will be created.
It would be wise at this point in time for political parties and the government to acknowledge the Supreme Court’s term extension decision as a judicial ‘check’ on the Assembly’s reckless misuse of its constituent power. In future, though, the judiciary must learn never to seek arbitrary legislative power. Failings by governments and the political parties cannot lead to take-overs by other branches: government and the political parties must correct their errors themselves. The recent Supreme Court refusal to review its ruling on term extension has closed all doors to dialogue between the two. It is a blow to democracy, and it fails to create a positive environment for the peace process, communication should always be open. The Supreme Court must quickly extricate itself from the quicksand of politics. Its independence is vital for the fulfilment of democratic values and for the provision of fair justice. If it continues to enter into unnecessary political conflict, it will lose much of its credibility as the consolidator and promoter of justice. and the guardian of peoples’ fundamental freedoms.
Basnet holds a Ph.D. and an LL.M in International Human Rights law from Lancaster University in UK is an International Human Rights Law and an Advocate in the Supreme Court, Nepal
gyanbasnet@aol.com
Posted on: 2012-01-25 07:45
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