UK gets her Supreme Court

The United Kingdom, the mother of modern democracy, has formally instituted her Supreme Court (SC) and ended the judicial functions of the House of Lords that evolved over centuries. The decision to constitute the SC, taken some six years ago, was contested by many as a profligate exercise arguing that the change was just a cosmetic one. The creation of the SC, however, has more than a symbolic value: It means that parliament’s lawmakers and the judges charged with overseeing legislation have now been effectively separated. Highlighting the importance of this change, newly appointed President of the SC, Lord Nicholas Phillips said, “This is the last step in the separation of powers in the country.”



Though the UK led the extended historical process of evolution of the rule of constitutional law ever since it invoked the Magna Carta, the English Charter, in 1215, many of her offspring – or followers to be more politically correct – went far ahead in institutionalizing the separation of powers. Many new democracies, specially modeled around Westminster, made clear provisions for an independent judiciary. The 1990 Constitution of Nepal, promulgated after the restoration of multiparty democracy, clearly demarked the powers of the executive, the legislative and judiciary.



The Constituent Assembly (CA), which is debating the modalities of our SC in the future constitution, should also take note of developments in the UK. A CA committee has proposed that the legislature be given the final authority to interpret the constitution, along with the responsibility to appoint and dismiss SC justices. This proposal has been contested by many, including this newspaper, on the ground that it violates the principle of separation of powers and exposes the SC to undue pressure from the legislative body. In nascent democracies, where customs and practices are weak and precedents rare, the executive branch is more likely to abuse the constitution and the judiciary. And if the party in the government also has a majority – or sometimes two-thirds majority – in parliament, it can ride roughshod over the judiciary and interpret the constitution to suit its interests. Agreed that the Nepali judiciary has its flaws but never forget that it has, on several occasions, acted independently and challenged the excesses of the powers that be. It scrapped the Royal Commission for Corruption Control (RCCC) formed by Gyanendra after seizing power; it overturned the decision of the UML minority government to dismiss the then parliament and it ruled that the Tanakpur accord signed by then Prime Minister Girija Prasad Koirala was indeed a treaty and not just an agreement. It’s hard to believe that the judiciary would have passed such bold verdicts if it did not enjoy the independence it did under the constitution of the day.

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