With the final deadline for constitution drafting fast approaching, our political leaders seem to have developed a greater sense of responsibility towards building a consensus on contentious constitutional issues. The ongoing Hattiban workshop of the top leaders is a manifestation of this new-found sense of responsibility. One of the key issues on the table is whether there is a case for creating a separate Constitutional Court to look into constitutional interpretation.
The original proposal of the CA committee on judiciary, which provided for shifting the ‘judicial review of law’ power of the Supreme Court to a Special Judicial Committee of the Legislature-Parliament, has so far been rejected by political parties. There is already a consensus on respecting the principle of judicial independence while crafting norms governing the judicial system. Political parties agree that the creation of any judicial institutions should be within the lager framework of judicial independence.
In this backdrop, it is time that leaders at the negotiating table think through this significant issue and take a decision on whether we need a specific Constitutional Court or the Supreme Court (with the possibility of a constitutional bench) is adequate. Entrusting the highest judicial institution with the responsibility to nurture constitutional norms is a sin qua non in Nepal’s determined journey towards federalism and drafting of a robust constitution guaranteeing of civil, political, economic, social and cultural rights.
While there are opposing views among political parties on this issue, other stakeholders including members of the legal and judicial community are also divided. Those in favour of a separate Constitutional Court beyond the existing Supreme Court argue that there is a pressing need for specializing the constitutional review function. They are of the view that the Supreme Court may not be capable of handling additional responsibilities that include settlement of disputes between different layers of the governments and effective enforcement of more progressive Acts guaranteeing rights.
A specialized Constitutional Court is generally envisioned to secure certainty and uniformity in interpreting constitutional norms and to provide an independent check against legislative and executive excesses at different layers of the government.
On the other hand, those opposing the idea of creating a specialised Constitutional Court argue that the existing Supreme Court with a ‘constitutional review bench’ would be adequate . According to them, there could be an obvious clash of jurisdictions if parallel judicial institutions are created. This has been the case in many countries including South Korea, South Africa, Poland and Russia. They are also of the view that the Supreme Court has been performing well in terms of judicial review function and it can evolve as a kind of Constitutional Court by increasing its share of constitutional cases and reducing the number of ordinary cases, if provincial High Courts are given the final say in most civil and criminal cases.
However, neither of these two options may be the solution in the given context of Nepal. The political leadership needs to think of an out-of-the-box solution. For instance, why can’t there be a single apex court that fulfils the purpose of specialized constitutional review as well as addresses the concerns of potential jurisdictional and other tension within the judiciary? Let us be ready to explore a pragmatic, unique and localised solution that will fit better in Nepal’s context. We could have a “Supreme Constitutional Court”, a restructured form of existing Supreme Court, which addresses all of the above concerns.
By virtue of its hybrid nature, the Supreme Constitutional Court will have two chambers— ‘constitutional chamber ‘and ‘appellate chamber’. The ‘constitutional chamber’ will settle federalism-related disputes, administrate writ remedies and entertain public interest litigation (PIL). The appellate chamber can be entrusted with hearing appeals over decisions of the lower courts in relation to civil and criminal matters. Each chamber will have seven judges. No bench smaller than five judges bench will give a final decision. The Chief Justice can chair any of the chambers, as and when deemed appropriate. The court will have 15 judges altogether with one Chief Justice. If we broadly agree on this framework, further details and modalities can be worked out in line with internationally accepted norms of structural and functional independence of judiciary.
The creation of Supreme Constitutional Court, a restructured form of the existing Supreme Court, could be one of the pragmatic options.
With this structure, any potential jurisdictional conflict can be avoided, while also satisfying the demand for specialization. The country will have a more trusted authority to interpret the constitution. It also helps address the possible implication of the Supreme Court’s case-load becoming way too slim if provincial High Courts were empowered with the finality of decision making in most civil and criminal cases. This is also rationalised on the basis of lessons learned from South Africa that has already moved towards a merger of the Constitutional Court and the Supreme Court by having a common Chief Justice and adopting a shared function of constitutional review.
Our political parties need to deliberate seriously on this issue with an innovative and open mindset, thus arriving at a solution most befitting to Nepal’s context.
The author is an advocate and is currently his PhD in International Human Rights Law from University of Lucerne, Switzerland
rajuforjustice@gmail.com
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