On June 19, the Supreme Court of Nepal, headed by Justice Girish Chandra Lal, deliberated on the case of Vijay Kant Karma and others vs The Office of Prime Minister and Council of Ministers & others, and issued an interim order for the implementation of a recent 16-point deal inked by four major political parties. On the one hand, the Supreme Court decision has been widely criticised by the legal fraternity and scholars. Their concern seems to be genuine, considering the recent tussles between the judiciary and Parliament. But on the other hand, Madhesi parties opposed to the deal and other minority groups have welcomed the same stay order.

Political questions

There are two important aspects to the Court’s decision. The first aspect is that the recent decision of the Supreme Court has been criticised for  being a political question. What is a political question? In his article, ‘The Political Question Doctrine: Suggested Criteria’ (Duke Law Journal, 2005), Jesse H Choper defines political question as a “substantive ruling by the Justices that a constitutional issue regarding the scope of a particular provision (or some aspects of it) should be authoritatively resolved not by the Supreme Court but rather by one (or both) of the national political branches.”

This principle of political question comes in conflict with the notion of separation of powers. Legislative attorney Jared P Cole analyses two factors that must be taken into consideration while determining whether or not a ruling is a politcal question. Those two factors are: the constitutional and the prudential. First, the Court will analyse whether the constitution is clear on the issue or not. If it commits its domain to the government, the court will then interpret it as assigning discretion over an issue to another branch or it will avoid taking a decision in which the constitution solely delegates power to political departments. Second, the Court may take matters into prudential consideration so that its decision will not frustrate the people and risk its legitimacy. In other words, rather than issuing rulings that outstrip the mood of the country, the Court could decline to give its judgement on certain issues.

Now applying these principles, it seems to me that to a certain extent, the Supreme Court did engage in the political question. The Supreme Court based  its decision on a collective reading of Article 138 and Article 82 of the Interim Constitution and concluded that the restructuring of the state (delineation of provinces, their names and number) must be done before the dissolution of the CA. This is a very narrow interpretation of Article 138.

Not your domain

According to Article 138 of the Interim Constitution, “the final settlement on the matters related to the restructuring of the State and the form of federal system of governance shall be as determined by the Constituent Assembly.” This provision makes it clear that the CA has the final say on matters regarding the restructuring of the state. However, clauses one and two of article 138 give guidance to the CA on the model of restructuring of the state. In other words, restructuring of the state must be done in an inclusive way with an aim to end discrimination based on class, caste, language, gender, culture, religion and region. The recent 16-point deal makes it clear that a high-level commission (federal commission) will be formed to recommend the names and boundaries of the provinces. If such a commission gives its recommendations to the government without taking the guidance provided by the first and the second clause of article 138 into consideration, then it would be a violation of the Interim Constitution. Moreover, the decision of the major parties, which hold the majority in the CA, would be considered the final decision of the CA, which represents the people. Under such circumstances, the Court should not have encroached upon the territory of the CA.

Still, there is a notion of the political question doctrine, which suggests that the Court stay away from a political question. In the present context of Nepal, almost eight years have been invested in making a constitution and yet political parties in the CA umbrella have not been able to agree on restructuring of the state and are happy to delegate their task to a federal commission. Meanwhile, people want an inclusive constitution. It seems that Justice Girish Chandra Lal’s decision must also have been driven by this. Under such circumstances, the Supreme Court may, in good faith, take up political questions. Most importantly, the decision of the court would not have been criticised to this extent if the  generally-accepted practice of hearing the opinion of another party on a constitutional issue was respected.

An inclusive document

Minority political parties, nonetheless, have welcomed the Supreme Court’s decision. As a result, questions have been raised about the acceptance of the 16-point agreement. Subsequently, many are worried that the federal commission might not be able to arrive at a decision on the names and boundaries of provinces with a collective consensus, resulting in more delay. The concern of Madhesis and other minority groups are also genuine because if the CA could not decide on such contentious issues, then how can a commission formed by the political parties, which could not agree on the issue of federalism until now, be able to do so?  

Even so, it must be kept in mind that the constitution cannot be drafted with a full consensus; a compromise must be made at some point in time. The recent political deal , therefore, is a positive development though the Supreme Court decision has raised concerns about the acceptance of the new constitution. The decision should not be seen as a step backwards, but rather as an opportunity to work collectively in finding ways to think more inclusively on existing issues. It is  unfortunate and very disheartening to witness biased attacks on Justice Lal by associating him with Madhesis; it shows the hypocrises of the society in which we live.

In the future, the Supreme Court should be skeptical on deciding matters related to a political question. On the other hand, political parties should also understand that the overwhelmingly positive response to the 16-point deal was mainly a celebration of the end of deadlock. People’s hope for a constitution was revived. But, more importantly, the people hope for an inclusive constitution rather than the same old document with a new cover attached.

Upreti is an advocate ([email protected])