Not the end of the world
At a time when the constitution itself offers no way out‚ the only way to safeguard democracy‚ and the principle of separation of powers‚ is by resurrecting a parliament through elections
Ajaya Bhadra Khanal
The country is heading toward an electoral government led by Chief Justice Khilaraj Regmi, generating intense debate within the civil society and the political parties.
The move, definitely, is not the best option, and comes only as a solution of a last resort. It would have been ideal if the political parties had agreed to the November elections under the caretaker government led by Baburam Bhattarai, but having a CJ-led government is not the end of the world, as many would have us believe.
At the center of the debate is the principle of the separation of powers and the fear that judicial independence maybe compromised.
It is a genuine concern. The doctrine of the separation of powers intends to preclude the exercise of arbitrary power and to save the people from autocracy. In the US, for example, it is not just a political theory about organization of power, but is a rule of constitutional law enforceable in the courts. The Interim Constitution, although it talks about organization of power, does not establish separation of powers as a rule of law.
Also, the principle of separation of powers died in Nepal the day the Constituent Assembly expired.
The dissolution of the parliament and the attempt by the Baburam Bhattarai-led government to legislate through ordinance raised the possibility of such tyranny. In the same way, the nomination of Chief Justice, as the chief executive of the state, for however a limited time, opens the possibility of such autocracy to a greater degree, as it brings within the fold of the executive the domain of the judiciary. However, there are means and mechanisms through which such tyranny can be limited.
One way in which such monopoly over state power can be limited is through a mandatory provision that the President seek approval of major political parties for any legislation. In a sense, this is already happening. The President played an important role since May last year to prevent this tyranny symbolized by the desire of the executive, in the absence of the parliament, to legislate.
Despite the dissolution of the parliament, the President has sought political consensus, prior to approving ordinance that are necessary for the running of the state. Although not a perfect mechanism, this move upholds the principle of the separation of powers, in as far as it seeks the consensus of political parties in the legislative function. This provision must continue until the election of a new parliament.
Given the huge gap between political theory and practice, it would be better, in Nepal’s case to try to address the objective behind the principle of separation of powers.
According to Professor Ackerman (2000), the key is to devise institutional strategies that serve democracy, professionalism, and the protection of fundamental rights, which are the elements that lie behind the modern doctrine of the separation of powers.
Already, the conflicts of interest among political parties in the country are likely to discipline each other. However, with a non-political government, political rivalry may not be enough to influence a government indifferent to voter behavior.
As Levinson and Pildes (2006) explain, the competition among political parties is more important than competition among branches of government to deliver the public good intended by the principle of the separation of powers.
An environment of political plurality and political competition encourages judges to embrace positions of political neutrality even in countries like Malawi and Zambia (Vondoepp, 2006). Given these findings, the situation in Nepal favors separation of powers and judicial independence despite absence of the parliament, and now, a legitimate government.
Unlike constitutions of western democracies, which are concerned mostly about branches of government, Nepal’s Interim Constitution recognizes the role of the institution of political parties through which policies are shaped and implemented.
This power of the public, also, should not be overlooked while searching for options to get out of the current political deadlock. Democratic publics play an important role in constraining the exercise of arbitrary power or, during emergencies, limiting extra-legal prerogative power (Feldman, 2008). The Nepali people, too, must be trusted and respected for their ability to resist abuse of power.
A second way in which such autocracy can be prevented is by protecting judicial independence and making sure that government action can be reviewed in the Supreme Court. The independence of the judiciary is an important component of the separation of powers concept. It is as important for the judges to be free from coercion from his own brethren as from outside influences.
Even in Britain, “the concepts of judicial independence and the separation of powers are used more as terms of political rhetoric than legal concepts” Robert Stevens (1999). The reasons being, first, the crossover of executive and the legislative, and, second, no effective independence of the judiciary collectively even as individual judges have a high degree of independence.
Judicial independence, in a democracy, is not influenced by the separation of powers (Owens, 2010). Normally, the Supreme Court can protect its institutional integrity and ensure compliance with its decisions through public support and political competition or political pluralism. In a democracy, such external support may not even be necessary to maintain the court’s authority (Vanberg, 2000).
Like Madison, our concern should be whether there is a rule of law and not of men. This applies as much to the executive as to the judiciary. This means that, one man must not be able to supersede institutions and the law.
To force the Chief Justice to resign in order to head the government would tantamount to violating judicial independence. A better way is to separate Chief Justice as the head of government, and the judiciary, then we can still guarantee the possibility of judicial review. This is also already happening. The Chief Justice is involved in the decisions of the Constitutional Council, the decisions of which are subject to judicial review. In the same way, the decisions of the executive led by the Chief Justice can be subject to judicial review.
Nepal’s Interim Constitution is imperfect, and does not specify all common law principles. This cannot, however, prevent judicial review based on common law principles, because they function as a body of legal doctrine on the basis of which judicial review can be carried out (Edlin, 2006).
Therefore, at a time when the constitution itself offers no way out, the only way to safeguard democracy, and the principle of separation of powers, is by resurrecting a parliament through elections.
Ackerman, Bruce. 2000. The New Separation of Powers. Harvard Law Review, Vol. 113, No. 3 (Jan., 2000), pp. 633-729
Edlin, Douglas E. 2006. Judicial Review without a Constitution. Polity, Vol. 38, No. 3 (Jul., 2006), pp. 345-368
Feldman, Leonard C. 2008. Judging Necessity: Democracy and Extra-Legalism. Political Theory, Vol. 36, No. 4 (Aug., 2008), pp. 550-577.
Levinson, Daryl J., Pildes, Richard H. 2006. Separation of Parties, Not Powers. Harvard Law Review, Vol. 119, No. 8 (Jun., 2006), pp. 2311-2386.
Owens, Ryan J. 2010. The Separation of Powers and Supreme Court Agenda Setting. American Journal of Political Science, Vol. 54, No. 2 (April 2010), pp. 412-427.
Stevens, Robert. 1999. A Loss of Innocence?: Judicial Independence and the Separation of Powers. Oxford Journal of Legal Studies, Vol. 19, No. 3 (Autumn, 1999), pp. 365-402
Vanberg, Georg. 2000. Establishing Judicial Independence in West Germany: The Impact of Opinion Leadership and the Separation of Powers. Comparative Politics, Vol. 32, No. 3 (Apr., 2000), pp. 333-353.
Vondoepp, Peter. 2006. Politics and Judicial Assertiveness in Emerging Democracies: High Court Behavior in Malawi and Zambia. Political Research Quarterly, Vol. 59, No. 3 (Sep., 2006), pp. 389-399.