Leading vs cheerleadingLast week was full of dramatic political events. It began with an impeachment motion filed against Chief Justice Sushila Karki.
Last week was full of dramatic political events. It began with an impeachment motion filed against Chief Justice Sushila Karki.
This was followed by the filing of candidacy nominations for the first phase of local level elections.
And the week ended with the decision by a single bench of the Supreme Court (SC), which blocked the impeachment motion and allowed Karki to return to her position, with immediate effect.
The impeachment motion has stirred great controversy—and rightly so. It has far-reaching consequences for separation of powers among the three arms of state—the executive, the legislature and the judiciary.
Various parties and groups rose up against the impeachment motion. But when the SC issued its interim order, there was confusion. Some were quick to hail the decision, but there were those who, while remaining against the motion, were ambivalent about the interim order. They asked if it was it within the SC’s jurisdiction to take such a decision against the legislature.
The task of the legislature is to formulate laws; the task of the judiciary to interpret them. But the distinction can never be so simple in practice. In some cases, the legislature appears to be interpreting old laws when it passes a bill.
In other cases, the laws are vague, and court decisions seem to be creations rather than interpretations. In the impeachment case, the parties technically followed the constitution when they registered the motion.
But the court decision to halt the motion appears to be based on more abstract principles.
It appears to have been made on the basis that the motion attacked the independence of the judiciary.
No one has been able to precisely delineate where the right of the legislature ends and where that of the judiciary begins. In normal times, it is easy enough to figure this out. But political theory struggles to decide in extreme cases—such as the one Nepal is currently facing—where open conflict has emerged between the most important state organs and there is no other institution to make a final resolution.
For the health of the democratic community, it is best not to make controversial decisions that can lead to extreme scenarios.
If the conflict between the legislature and the judiciary deepens, it could severely undermine already fragile democratic institutions in Nepal.
The best possible outcome would be for the government to immediately withdraw the impeachment motion to avoid further confrontation.