THE ROLE OF THE JUDICIARY AND THE SUPREME COURT IN THE CONSTITUTION-MAKING PROCESS: THE CASE OF NEPAL.

• Author: Zhu, Guobin

1. INTRODUCTION 70 II. SEPARATION OF POWERS AND THE SUPREME COURT OF NEPAL 71 A. The Role of the Judiciary Within the Separation Power's Model of Nepal 71 B. The Distinctive Characteristic of the Supreme Court 72 III. SAFEGUARDS FOR THE INDEPENDENCE OF THE JUDICIARY 74 A. Rule of Law in the Constitution of Nepal 74 B. Safeguards to the Rule of Law: The Independence of the Judiciary 74 IV. THE SUPREME COURT OF NEPAL IN THE CONSTITUTION-MAKING PROCESS 77 A. Courts as a Constraint in the Constitution-Making Process 77 B. Formal and Substantive Justifications 80 V. CONCLUSION 82 I. INTRODUCTION

   On November 21, 2006, the Comprehensive Peace Accord (CPA), which was signed between the Government of Nepal and the Unified Communist Party of Nepal, terminated the Nepalese decade-long civil war that started in 1996. This accord also marked a fundamental constitutional change as it paved the way for the republican form of the polity. However, the road to a new constitutional order was not a straightforward process; a long transitional period intervened, with the adoption of an Interim Constitution, while a number of deadlines were not met, leading to a constitutional crisis. (1)

   The new Constitution of Nepal, which was adopted in September 2015, was the key element of both the CPA of November 2006 and the Interim Constitution of 2007, signaling the fresh start for a new constitutional order. (2) The 2015 Constitution of Nepal is a very long document, and contains thirty-five Parts, 308 Articles, and nine Schedules. Part 11, entitled 'Judiciary', regulates the judicial branch and it dedicates thirty-one Articles, while Part 12 is dedicated to the attorney general with five Articles. In addition, relevant provisions are scattered throughout the whole document; for instance, Article 300 regulates a number of transitional arrangements with regard to the judiciary. (3)

   Interestingly, a decision of the Supreme Court of Nepal in 2011 played a key role and spurred the adoption of the new Constitution. (4) Furthermore, the Supreme Court had also made a remarkable intervention, which was also seen as controversial, issuing an interim order against the implementation of the 16-Point Agreement. (5) Without doubt, such key decisions elevated the Supreme Court as a quasi-player in the constitution-making process. At the same time, they have demonstrated the inherent tension that exists in the institution of the judiciary between judicial activism and judicial restraint.

   This article will proceed as follows. First, it will discuss the role of the courts in the separation of powers system, and it will discuss the particular configuration of the separation of powers system in Nepal in relation to the Supreme Court. Second, it will analyze the significance of the rule of law in the Nepalese constitutional order, and the role of the courts as guardian to the rule of law, examining the configurations in the Constitution of Nepal to safeguard the independence and the impartiality of the Supreme Court. Thirdly, it will analyze the role of the Supreme Court in the constitution-making process. Focused on the experience of Nepal, and referring to the precedent of South Africa, it will elaborate on the justifications, formal and substantive, for a court to participate in the constitution-making process.

2. SEPARATION OF POWERS AND THE SUPREME COURT OF NEPAL

   1. The Role of the Judiciary Within the Separation Power's Model of Nepal

      The judiciary system of Nepal has, at the top of the hierarchical pyramid, a Supreme Court with the final power to interpret the Constitution. (6) But the structure of the constitutional jurisdiction is based on a diffuse model of constitutional review (7) This model, which is opposed to the concentrated model of constitutional review, signals that the Supreme Court does not have the exclusive power to interpret the Constitution, as lower courts also have the power to interpret the Constitution and decide on the constitutionality of laws. However, the Supreme Court has the final word on the interpretation of the Constitution and it sets the legal precedent that lower courts must follow. (8) At the same time, the Supreme Court exercises supervisory role over the inferior courts. (9)

      Article 133 of the 2015 Constitution of Nepal, entitled "Jurisdiction of the Supreme Court," provides the scope of the review of this Court, which includes the federal review of subnational legislation, the constitutional interpretations and the constitutionality of the legislation, and the review of appeals of decisions that have been initiated and executed by the High Court. (10) In particular, Clause provides that:

      Any Nepali citizen may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this Constitution or on any other ground, or any law formulated by the Provincial Assembly is inconsistent with the law formulated by Federal Parliament or any law formulated by Municipal Assembly or Village Assembly is inconsistent with the law formulated by Federal Parliament or Provincial Assembly, and extraordinary power shall rest with the Supreme Court to declare that law void cither ab initio or from the date of its decision if it appears that the law in question is inconsistent. (11) However, the jurisdiction of the judiciary regarding constitutional review is not unlimited. Article 133 Clause 4 Proviso explicitly limits the jurisdiction of the Supreme Court to interfere with the internal affairs of the Federal Parliament to review the proceedings and decisions of the Federal Parliament concerning violation of its privileges and any penalties imposed. (12) It is unclear, though, whether the courts can intervene if they find error in jurisdiction or excess of jurisdiction. (13)

   2. The Distinctive Characteristic of the Supreme Court

      In theory, the main difference between a supreme court and a constitutional court is the concentrated or diffuse control of the constitutionality of acts of the legislature. In countries like the United States with a supreme court at the top of the judicial pyramid, every court has the power of constitutional review. However, the Supreme Court has the final verdict on the interpretation and sets the precedent. (14) On the other hand, in countries with a constitutional court, the so-called "Kelsenian" Model, only the Constitutional Court has jurisdiction on constitutional law matters. (15) However, reading provision 133 in the Constitution of Nepal, a paradox emerges pertaining to the jurisdiction of the Supreme Court. Despite the fact that a Supreme Court is established in Nepal with the jurisdiction of hearing appeal cases from the High Courts, in reality it has elements of a constitutional court. (16)

      This paradox is explained by the constitutional history of Nepal. The drafters of the new Constitution took into account the quite successful institutional role of the preexisting Supreme Court, which was first established by the Supreme Court Act of 1956 under the Interim Constitution of 1951. (17) Thus, path dependence can explain why the drafters would not experiment and introduce a constitutional court that would function along with a supreme administrative court or a supreme private law court. (18)

      However, the drafters of the new Constitution have introduced an innovation that could set the paradigm for future constitution-making. In particular, Article 137, entitled, "Formation of the Constitutional Bench," introduces a constitutional court within the Supreme Court comprised of the Chief Justice and four other Justices appointed by the Chief Justice on the recommendation of the Judicial Council. (19) According to Clause 2, the jurisdiction of the Constitutional Bench would be "related to disputes over the jurisdiction between the Federation and Province, among Provinces, between a Province and local level and among the local levels [of government]" (20) and "related to disputes concerning the election of members of the Federal Parliament or Provincial Assembly, and ineligibility of the member of the Federal Parliament or Provincial Assembly." (21)

      The original proposal by the State Restructuring Committee to adopt a Constitutional Court along with the Supreme Court was among the points agreed upon in the 16-Point Agreement among the major political parties before the adoption of the final constitutional document. (22) However, fears about possible conflicts between the Supreme Court and the Constitutional Court on their status and jurisdictions have led to the innovative option of the Constitutional Bench within the Supreme Court. (23)

      Apart from the introduction of the Constitutional Bench, the framers of the Constitution carried forward most of the provisions on the judiciary from the 2007 Interim Constitution as well as Nepal's previous constitutions. This is a sign of continuity, which is essential for political and democratic stability.

      Having said that, it is noteworthy that the scope of the jurisdiction of the Supreme Court was altered. In particular, the drafters of the new Constitution have removed from the jurisdiction of the Supreme Court the extraordinary counter-majoritarian powers of the Constitution of 1990. According to Article 116, Clause 1 of the 1990 Constitution, the Court could review constitutional amendments on the basis that they were contrary to the spirit, i.e., the basic features, of the Preambleof the Constitution. (24) However, under the new Constitution the...