For the region and beyondNepal’s institutions have a historic opportunity to make Nepali democracy a model.
If the Supreme Court strikes down Prime Minister KP Oli’s dissolution of Parliament as unconstitutional, it will have effects beyond Nepal. Indeed, because of the machinations over the last few years of the leaders of established democracies, liberal democracy’s stock across the world is at an all-time low. The Supreme Court has the opportunity to make Nepal a bright spot in an otherwise diminished community of democratic countries.
The Supreme Court will decide whether Oli’s decision to dissolve Parliament was constitutional, despite his party enjoying an almost two-thirds majority in the House. While it does not explicitly state so, the 2015 constitution veers towards a preference for a United Kingdom-style fixed-term parliaments. In the UK, dissolution occurs only under three specific conditions. After a vote of no-confidence in the government, if no party or parties can assemble a majority in the House or if two-thirds of the House vote for dissolution.
If the Supreme Court interprets the constitution along these lines, it will strengthen Parliament’s role as a genuinely independent pillar of democracy designed to check and balance the executive. The court will then reverse the trend that the region has witnessed in the past few years, where governments in Bangladesh, India and Sri Lanka have either side-stepped Parliament entirely or used it further to cement their authoritarian instincts.
As is true with constitutional courts across the world, Nepal’s Supreme Court will indeed consider the political context in which this case has been brought before it. The immediate context for Parliament’s dissolution was Oli’s attempted power grab via an ordinance that sought to allow him more leeway in appointments to the country’s independent institutions. When he could not muster enough support for it in his Cabinet, let alone Parliament, Oli unilaterally dissolved the legislature. This is the crux of the issue. Behind the constitutional technicality of whether Oli was correct in dissolving Parliament lies the broader plan to capture power and weaken democracy. Indeed, there are precedents for this, not just in young democracies but also in older ones.
In the region, Sri Lanka provides an illuminating case study. After coming to power in 2019, President Gotabaya Rajapaksa’s government amended Sri Lanka’s constitution to restore the president’s ability to dissolve Parliament and appoint the heads of key public institutions.
In the UK, the fount of parliamentary democracy, Prime Minister Boris Johnson’s government plans to weaken the power of the UK Supreme Court and repeal the Fixed-term Parliaments Act. In 2019, Johnson was handed an embarrassing defeat by the Supreme Court as it struck down his move to prorogue Parliament, calling it ‘unlawful’. In Israel last year, Benjamin Netanyahu’s government briefly shut down the courts under the pretext of the pandemic. He then sought to prevent the proper functioning of Parliament, again on the grounds of the coronavirus. His plans were stymied only when the judiciary stepped in. Thus, total domination over the executive and weak and subservient legislatures, courts and the other independent institutions that ought to act as checks and balances is very much part of an aspiring autocrat’s playbook. By studying the context in which it has to resolve Nepal’s constitutional crisis then, the Supreme Court would do well to also look at the dangers for itself hidden in its genesis.
One of the other issues the court will no doubt help clarify is the role of the president. The zeal with which President Bidya Devi Bhandari assented to Oli’s dissolution decision led to accusations that she functioned more out of past party fealty rather than loyalty to the constitution. If not the courts (for what might smack of judicial overreach), then Nepali politicians must establish explicit safeguards that prevent future presidents from behaving in such a partisan manner. For reference, they only have to look south to India. Under the Narendra Modi-led government, the president and governors of Indian states have become an extension of Modi’s ruling Bharatiya Janata Party. It is no longer safe for democracies to expect individuals to behave themselves and follow unwritten norms. And it is all the more dangerous when these individuals wield enormous power.
Nepal’s Election Commission will be examining the legality of Oli’s attempt to claim leadership of the Nepal Communist Party by enlarging and appointing new members to the party’s central committee. Because Nepal’s Political Parties Act gives the Election Commission the powers to do so, it has a golden opportunity to mandate and supervise free, fair and regular intra-party elections for all of Nepal’s political parties. This will be a seminal act, not just for Nepal, but for the region, where political parties are usually only vehicles for individual politicians. While India’s Election Commission may win plaudits for conducting the world’s largest election exercise, it still does not have the power to insist on elections within India’s political parties.
Lastly, how Nepal’s Supreme Court conducts itself over the next few weeks is important for the future stature and independence of the judiciary as an institution. For example, there is little clarity over how the five judges that will sit on the constitution bench hearing the upcoming petitions have been selected. Seniority, which is the norm, has not been followed in this instance. While it is entirely within the chief justice’s authority to constitute benches in any way he sees fit, the lack of clarity surrounding the process is sure to raise eyebrows. This is precisely how the long descent of India’s higher judiciary began, with controversy first emerging over the lack of transparency towards setting up of crucial constitution benches. It is vital for Nepal’s Supreme Court to self-police itself over the next few weeks so that critics do not accuse it of wrongdoing.
To reiterate, the manner in which Nepal’s Supreme Court and Election Commission resolve the multitude of problems gripping the country will have repercussions not just for the country but beyond. In Malawi last year, despite blandishments and threats from a thuggish ruling party, that country’s Supreme Court annulled a brazenly rigged election. It has since energised pro-democracy movements across Africa. Let Nepal similarly be a model for the region and beyond.