A constitutional court is a counter-majoritarian approach to providing a forum for debate, discourse, and reasoned deliberation-the basic hallmarks of a liberal democracy
By Laba Karki, Ph. D.
By Laba Karki, Ph. D.Despite much lip-service and rhetoric about people empowerment and liberalisation in Nepal, there has been little inquiry into questions about expansion of judicial review and creation of a constitutional court to safeguard civil rights of the people and to check and balance state powers. While the post-communist democracies from Russia to Mongolia rushed to enact “Kelsenian” type constitutional courts to facilitate constitutional democracy instead of reviving parliamentary supremacy, Nepal unfortunately is still lost in the dark ages of absolutism.
Historically, the global democratic wave of the Nineties also ushered multi-party democracy in Nepal. However, unlike many post-communist and authoritarian regimes, Nepal’s political consciousness had not reached a stage where the drafters envisioned a need for a constitutional court as an insurance against failure of democracy-a mechanism to harness excesses of government and to tame political institutions that run amok. Although a “paper” provision for judicial review (a judicial commission to investigate abuse of authority) was incorporated into the constitution of Nepal (1990) in the wake of the democratic wave, it was weakly enforced by the Supreme Court, which still remains marginalized and submits itself under the fists and influences of the dominant ruling parties and personalities.
Following the April uprising, an air of uneasiness and uncertainty still pervades over Nepal’s new constitution and how it will distribute power and justice. If the monarchy is to remain only as a titular head of state (a ceremonial role) in the new constitution, then surely one would hope that the constitution will balance and separate state powers and provide some kind of check-valve mechanism. And, if post-authoritarian communist regimes from Russia to Mongolia have rejected the idea of parliamentary supremacy as illiberal and regressive, then Nepal should fast-forward and move in tandem with the rest of the emerging democracies by creating a Kelsenian type constitutional court to interpret the constitution and to resolve the evergreen problems of excesses of government, uncertainty in the constitution, and encroachment of civil rights.
Apart from negotiating the much-welcomed peace deal with the Maoists, the government’s action has been more vindictive rather than progressive. Since reclaiming power, the parliament has been in a relentless “witch-hunt” to level and subjugate Nepal’s monarchy and to supplant it with parliamentary supremacy. It comes as no surprise, however, that the notion of supremacy of the parliament originated during the English Revolution (circa 1688). At that time, it was logical for the English leaders to crusade for parliamentary supremacy because there was perceived threat to liberty from several institutions such as monarchy and the church. However, given today’s global expansion of liberal constitutional democracies, the concept of supremacy is simply anachronistic and a vestige of third-world “winner-take-all” ideology.
Even in England, which cherishes the time-honored tradition of constitutional monarchy and parliamentary sovereignty, there have been significant cutbacks into parliamentary rule, especially as English courts have been reviewing the constitutionality of parliamentary statues in the process of integrating into the European Union. Likewise, in post-Indira Gandhi ruled India; the Supreme Court has assumed a more autonomous role in implementing judicial review at the national level by challenging and striking down ad hoc legislation that conflict with the constitution. And, in post-Leninist Mongolia, the constitutional court has played a pivotal role in separating and balancing state powers and restraining its new parliament from usurping excessive power.
The notion of supremacy of the parliament originated during the English Revolution (circa 1688). At that time, it was logical for the English leaders to crusade for parliamentary supremacy because there was perceived threat to liberty from several institutions such as monarchy and the church. However, given today’s global expansion of liberal constitutional democracies, the concept of supremacy is simply anachronistic and a vestige of third-world “winner-take-all” ideology.
The first wave of constitutional democracy and judicial review in the world owes its roots to the landmark Marbury v. Madison decision in the United States in 1803. The Supreme Court in Marbury for the first time voided Congressional acts that was deemed repugnant to the constitution and established the power of judicial review. Importantly, the Court became the final arbiter and interpreter of the constitution. In the second wave of democracy, powerful centralized constitutional courts with formal powers of judicial review were established in the post-fascist democracies of Germany and Italy.
The European model for judicial review, however, has an antecedent in the Austrian-born philosopher Hans Kelsen, regarded as one of the greatest twentieth century positivist jurist. Kelsen redefined the meaning of a constitution as the “gründ norm”-which denotes the basic norm, or rule that forms an underlying framework for a legal system. He argued that the integrity of the legal system, which he conceived as the brain of the state, would only be assured if the superiority of the constitution could be guaranteed by a separate jurisdiction-a “constitutional court”. As an extra-judicial body with the power to enforce the constitution, constitutional courts not just adjudicate disputes arising under the constitution, but wield the ultimate legal authority to strike down and declare legislative and executive acts unconstitutional.
Indeed, Kelsen’s model of constitutional court and justice has been the predominant method for enforcing provisions of the constitution and for constraining legislative and executive branches in the post-communist and authoritarian democracies from Eastern Europe to South Africa, and to North Asia. Where conventionally political institutions locked horns over power and conflict and trampled civil rights, constitutional courts have stepped in and diffused the “illiberal” tendencies in the new democracies by meting out democratic constitutional justice or “Sambhaidanik Insaaf” to the people. A constitutional court, therefore, is a counter-majoritarian approach to providing a forum for debate, discourse, and reasoned deliberation-the basic hallmarks of a liberal democracy.
In sum, a nation may draft a high and lofty constitution with clever and complex words, but without a rigid judicial constitutional court (appointed by several branches) to interpret and enforce the constitution, it will remain an abstraction-an inaccessible and meaningless document to the people. Thus, it is time that Nepal’s leaders look beyond the forests and the hills and synchronize Nepal’s democracy with the rest of the new wave democracies by devising a constitutional court and thereby elevating democracy in Nepal to the distilled and sublime level. But for now, it may be too early to sing “constitutional court and justice” in Nepal because such a leap in consciousness develops only from within the nation in its evolutionary process.
(Laba Karki, Ph.D., J.D. is a practicing attorney at an international law firm in Washington, DC and can be reached at [email protected])
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