Political question, Your Honour!Many constitutional disputes presented before the Supreme Court show political and legal character.
The Court: Counsels for petitioner and respondent will be allowed 1 hour to present their arguments. You may proceed.
Petitioner’s Counsel: The Cabinet’s decision to withdraw Nepal from the International Convention on Civil and Political Rights (1966) violates fundamental rights guaranteed under the Constitution of Nepal, and is against the principle of international law, and therefore, should be immediately revoked by the Honourable Court.
The Court: Isn’t your claim barred by the political question doctrine because it is within the executive’s domain to renounce a treaty?
Petitioner’s Counsel: It is also a legal question, Your Honour.
The Court: Please elaborate on how it is a legal question.
This fictional transcript illustrates the puzzle the court routinely faces when detaching politically sensitive matters from legal questions under consideration before it. For decades, lawyers arguing from opposite sides have tried to convince the court about the nuances between political and legal questions, either by adopting a narrow view that not all constitutional issues are questions of constitutional law requiring determination by the judiciary, or by expanding the reach of judicial review to state that political issues which have a bearing on the constitution can be adjudicated by the court. Although there are champions belonging to both camps, this debate still has no clear winner so far.
Adventures of judiciary
After the United States Supreme Court in the fabled case of Mulbury v Madison (1803) juxtaposed the statement “duty of the judicial department to say what the law is” along with the seemingly incompatible “[q]uestions, in their nature political… can never be made in this court”, judicial organs subscribing to the notion of separation of powers across the world have struggled to provide a clear meaning to the doctrine of political question. A précis of the doctrine of a political question is simple. The court should abdicate judicial responsibility when the constitution requires political actors to decide the constitutional interpretation. But when applied into actual practice, the contours become somewhat blurry. Neither the Supreme Courts of the US and the United Kingdom nor the supreme judiciaries of South Asian countries have managed to unblur the concept.
The US Supreme Court made a daring attempt in Baker v Carr (1962) to set out the scope of the political question doctrine, and unknowingly triggered the unintended consequence of limiting the extent of its application. The US court designed a six-factor authentication to access the court when presented with a political question. First, whether or not the executive or legislative branch has the express authority to resolve the issue. Second, if the judiciary has the capability to discover or manage the standards in question. Third, if the judiciary will exceed discretion when making policy determinations. Fourth, whether or not the court by entertaining the controversy will disrespect other coordinate organs of the state. Fifth, whether or not the court will have to adhere to political decisions already taken without asking any question. Lastly, if there is a risk of embarrassment due to multifarious interpretations among the three branches.
Although the Baker case laid out these six standards, ironically these six standards have become even very difficult standards for the judiciary to manage. Hence, in the last 60 years since the decision in Baker, the six criteria have been invoked in only three instances by the US Supreme Court to bar cases on the ground that the questions are of a political nature. These US cases categorised questions of judicial surveillance of military training, impeachment of federal officers, and partisan gerrymandering as non-justiciable matters falling under the domain of political question.
Lately, even UK courts have not hesitated to assume jurisdiction over cases of a political nature. The UK Supreme Court invalidated the prorogation of the UK Parliament by Boris Johnson in 2019 with an observation that it was the judiciary’s constitutional responsibility to protect parliamentary sovereignty. In the same vein, the judiciaries of South Asian countries have drawn upon the doctrine of political question enunciated in the West into their constitutional law, albeit applied it even more restrictively. Bangladesh and India, on many occasions, have not shied away from interceding in constitutional amendments passed by the legislatures, denying them the insulation of political questions. Even the Pakistani Supreme Court has revisited the actions of the executive involving dissolution of the assembly and motions passed by the legislature, stating they were reviewable notwithstanding the underlying political attributes.
Nepal’s case is not very different. In Rabi Raj Bhandari v Manmohan Adhikari (1995), the Supreme Court observed that the doctrine of political question is not a statutory or constitutional creation but rather a judicial concept created by the judiciary. In cases before and following it, the Supreme Court has stamped out the political question doctrine in issues ranging from several parliamentary dissolution cases and extension of the term of the Constituent Assembly to the latest judgments permitting criminal investigation over the decisions of the Cabinet and defining the impartial and neutral role of the House Speaker. Although the single judge bench of the Supreme Court in Chandra Kanta Gyawali v Girija Prasad Koirala (2007) cautioned against “conducting political process through the courts”, the political animal within the judiciary has been provoked into engaging in court politics, time and again.
A great majority of constitutional disputes presented before the Supreme Court possess both political and legal character. On more occasions than not, the political actors themselves are more than willing to cede the authority to the judiciary to rule on political kerfuffles, ergo, the contest among political parties to select justices who passively conform to their party line. However, this supremacy the courts have enjoyed may be short-lived if it loses its esteem before the public. As respects the aforementioned transcript, arguments evoking the judiciary’s responsibility to protect civil liberties and calling the court a citadel of fundamental rights will induce the court to indulge in the dispute, and perhaps even provide relief in favour of the petitioner.