Analysis

Constitutional Court necessary to resolve federal conflicts, review legislation

Jivesh Jha

In democratic set up, Constitutional Court often resolves constitutional issues, giving equal representation to each of the federating units. It’s often said that a Constitution prescribing for the formation of a Constitutional Court in conflict resolution can help the country to counter political turmoil.

However, Article 137 of the 2015 Constitution of Nepal provides for a Constitutional Bench in the Supreme Court, instead of a Constitutional Court. It consists of the Chief Justice of Nepal (CJN) and other four judges designated by the CJN on the recommendation of the Judicial Council. The Bench has the original jurisdiction to try and settle the cases relating to the jurisdiction between the federation and a province, between provinces, between a province and a local level and between local levels; or the disputes relating to election of members of the Federal Parliament or Provincial Assembly and matters relating to disqualification of a member of Federal Parliament or of the Provincial Assembly.

Similarly, if it appears that any case is sub-judice in Supreme Court involving a question of serious constitutional interpretation, the CJN may ask the Constitutional Bench to try those cases.

“The establishment of Constitutional Bench is not a bad idea. The direction given by the constitution is also not wrong. But, the constitutional bench has not been able to meet the requirement of a federal country with 761 governments exercising self rule and shared rule according to the Constitution. It has not been able to move on. Its process has not been smart and efficient. It has not been able to decide cases and promote federal culture,” said Dr Bipin Adhikari, former Dean of Kathmandu University School of Law and senior advocate, in a workshop organized on 12 September by Kathmandu University School of Law in partnership with Office of the Attorney General and Konrad Adenauer Stiftung.

Dr Adhikari further said that the apex Court is very traditional and mostly dominated by one-type of ethnic group which often fails to ensure gender-friendly or ethnic-friendly justice. “The apex Court is yet to adopt an inclusive shape.”

If international practice is something to stand by, “Russia, South Africa, South Korea, or Germany has separate Constitutional Court while the US and Australia have given jurisdiction to Supreme Court for resolving federal disputes. India and Nepal have Constitutional Bench in Supreme Court,” said Sanjeeb Raj Regmi, Joint Attorney at Office of the Attorney General. He further said that the supremacy of the democratic principles and Constitution is largely garnered with the adoption of the Constitutional Court.

Sharing similar views, Dr Rishikesh Wagle, Dean of Kathmandu University School of Law, was of the opinion that there is a dire need of acknowledging the best international practices to consolidate the democratic credentials into a new high. “The records show that certain provisions in Constitution were adopted and enacted without deliberate discussion. We should adopt best international practices (suiting our context),” said Dr Wagle.

He further said that it was a missed opportunity to sideline the idea of Constitutional Court. “Constitutional Court, which holds expertise on issues relating to Constitution and federal disputes, is not a bad idea and it’s an imperative for the consolidation and strengthening of constitutional values.”

In contrast, paper presenters argued that the provincial governments have little prosecutorial power (to prosecute the criminal cases) under the current constitutional scheme. Justice Kiran Paudel, Judge of Patan High Court, raised two pertinent questions: 1. Does the Constitution allow the Attorney General to delegate his or her functions, duties and powers to the Chief Attorney? 2. Can Criminal law be adopted and enacted by the provinces at their competence? Citing international practices under different jurisdictions, he opined that provinces could be given prosecutorial powers for the smoother functioning of criminal justice system.

Seconding Justice Paudel, Dato Param Cumaraswamy, advocate and solicitor in Malaysia and former United Nations Special Rapporteur on the Independence of Judges and Lawyers, said that Attorney General should be advisor to the government and prosecutorial power should be vested in the prosecutorial department to carry out the prosecution.

constitutional court

Justice Ilwong Kang, former judge of Constitutional Court of Korea, said that constitutional courts play an instrumental role of guardians of the rights of institutions and individuals to discourage any adventurism by the state. “Korean Constitutional Court has made a deep impression in the country. Our Constitutional Court played a stellar role in abolishing the military rule and unreasonable laws enacted by dictatorial governments in the past. Our decision remains unopposed and as a result we gained trust among the people,” added Justice Kang.

“The international experiences suggest that constitutional courts are essential component for the smoother functioning of a political democracy,” further said Justice Kang.

Similarly, Pabitra Raut, Lecturer of Nepal Law Campus, Kathmandu, said, “Constitutional Court could play a significant role in resolving the conflicts among different branches of federal democracy, and reviewing legislations enacted by the government. Still, we should have a robust discourse, dialogue and discussion as to why Constitutional Court is the need of hour for us.”

Over and above all this, a Constitutional Court is regarded as the top court when it comes to the question of interpretation of Constitution. Constitutional Court in Germany, France or Italy has played a crucial role in promoting and protecting socio-economic and political rights and minimizing the institutional conflicts.

These courts are not the integral part of regular judicial system. So, there should be a fresh debate as to whether the Constitutional Bench in Supreme Court is an obsolete idea in our part of the world where federalism and the federal conflicts are like new recipes served before the people as well the governments in power.

Published on 15 September 2019

jhajivesh@gmail.com

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