Warming the benchImmediate and long-term plans are needed to make the constitutional bench effective
One year has passed since the three tiers of government were formed, and it is time to evaluate how they have performed and see what improvements can be made to make them more effective. The fact that there are challenges is nothing unusual, the fact that we have let the system run in business as usual mode is not. Federalism is a totally new system for Nepal, and it will take time to institutionalise it. The constitution has laid down curative approaches for the resolution of disputes that may arise among the federal, provincial and local levels. Problems are bound to crop up especially since there are overlapping, ambiguous and unclear jurisdictions for each tier of government.
The constitution has foreseen that there will be problems, and it has also prescribed ways to overcome them. Article 137 talks about the constitutional bench at the Supreme Court to deal with the constitutional or legal nature of disputes. Adequate discussions have been held in the Constituent Assembly to form a constitutional bench instead of a separate constitutional court. We need not revisit those debates. The bench is in line with the spirit of cooperation, coexistence and coordination among the three tiers as expressed in Article 232 of Part 20 of the constitution.
However, in practice, the bench has not been able to function as effectively as it was expected to. First, there is a struggle to activate it. There are never enough judges assigned to the bench, and it is called only twice a week. This is in contrast to the growing number of disputes and fears that prolonging such disputes may undermine the spirit of federalism. A total of 247 cases were filed at the bench, out of which only 20 have been resolved.
Speaking at a recent programme, Chief Justice Cholendra SJB Rana noted that there was every likelihood of disputes arising among the different state structures due to their overlapping jurisdictions, and any undue delay in resolving such disputes could destroy the constitutional structure. He stressed that it was essential to ensure effective operation of the constitutional bench, adding that with a clearly defined role and the presence of expert human resources, one could expect expeditious and effective actions by the bench.
At the same programme, Supreme Court Justices Sapana Pradhan Malla, Ananda Mohan Bhattarai, Anil Kumar Sinha and Tanka Bahadur Moktan agreed that the bench had not able to work as per expectations. The judges said that seniority should not be the only basis for assigning judges to the constitutional bench. They also admitted that the judiciary was functioning amid challenging circumstances. They called for higher budgetary allocations, and pointed out that there were 17 judges in the Supreme Court to look at 22,000 cases.
The constitutional bench has both strong and weak points. A SWOT (strengths, weaknesses, opportunities and threats) analysis carried out recently revealed the need to adopt immediate and long-term strategies to ensure effective operation of the bench. The immediate strategy should involve open discussions by a full bench and the Judicial Council on how to make the bench more effective. Likewise, as per the mandamus issued on March 23, 2017, the Judicial Council should recommend the names of additional judges to work in the absence of the current members of the bench. It should also be noted that apart from cases under Article 137, the bench should not hear other kinds of cases. Timelines—such as resolving cases within six months of being filed at the bench, and completing the final order and the full text of the decision within 21 days—should be created.
The long-term strategy should include creating an act to operate the constitutional bench, arranging human resources to provide research-oriented expertise support to the bench, and setting up a team of experienced and expert staff for case management and text writing. The Judicial Council should recommend judges with expertise in constitutional and federal affairs to the bench.
If these strategies are followed, the constitutional bench will be able to work in the spirit of the constitution. Its effectiveness will have a huge salutary effect on the operation of federalism itself. Clear-cut resolution of disputes within constitutional and legal limits will lead to improved relations among all three tiers of government and help avoid big crises in the future. Time is of the essence here. One need not over-emphasise the importance of building a strong mechanism in these formative years.
Pradhan is the executive director of Nepal Law Society.