Court Holds Key To Solve Political Disputes

In a well-functioning democratic set-up, a balance among the three organs of the state – legislature, executive and judiciary – is essential for stability, good governance and development.  A problematic situation arises when any of the three wings tends to overstep each other's jurisdiction. If the executive shows arbitrary behaviour, the judiciary is invoked to bring the former back on track. In a country where the political disputes often crop up under one pretext or another, quarrels reach the court of justice for their final settlement. But when the court's benches are preoccupied with the bundle of litigations of political nature, democratisation process suffers a setback and delivery of economic justice is inordinately delayed.

Nepal has witnessed judiciary’s activism ever since the country ushered in multiparty system in 1990. But it is not the court itself but the political parties are responsible for allowing it to play a decisive role in resolving the vital political questions. The House of Representatives (HoR) was dissolved several times in the last three decades. And the Supreme Court had to decide whether or not the House dissolution was constitutional. The parliament, considered a supreme body of people’s representatives, was disbanded even when a single party commanded a comfortable majority in the House. Intra-party wrangling has led to the dissolution of House and government. Ironically, such untoward scenarios occurred following the landmark political changes in the country.

Intra-party feud  

In 1994, Girija Prasad Koirala dissolved the HoR after 36 lawmakers of his own party did not cooperate in endorsing the government’s policy and programmes in the parliament. Late Koirala had formed a majority government following the general elections in 1991. It was preceded by the People’s Movement and promulgation of new constitution in 1990, which was dubbed as the world’s best constitution. Man Mohan Adhikary and Sher Bahadur Deuba had also dissolved the parliaments. In December 2020, we encountered a similar scenario. KP Sharma Oli disbanded the HoR following a nasty intra-party feud. The then Nepal Communist Party (NCP) held near two-thirds majority in the federal parliament which formed after a three-tier polls in 2017. It was the first election conducted under the historic constitution promulgated in 2015. 

The Prime Minister’s step to dissolve the House is basically a constitutional-cum-political issue that is always challenged in the Supreme Court (SC). The SC gives the verdicts depending on the nature of the case. The unsatisfied parties often come in protest against the court’s decision, dragging it into a controversy. For instance, the SC’s decision to quash Man Mohan Adhikary’s move to dissolve the parliament brought the CPN-UML’s functionaries into the streets. Similarly, the SC verdict to invalidate the unification of UML and Maoist Centre as NCP triggered protests from the disgruntled leaders and cadres. When the judiciary’s verdicts invite disputes, this not only erodes its credibility but also poses a question to competency of the parties to sort out the key political and constitutional discords on their own. 

The hope that politics takes a stable course in the aftermath of the three-tier polls in 2022 has been dashed. Internal bickering and splits continue to rock the parties, landing their litigation in the court. In the second week of this May, Janata Samajbadi Party Nepal chair Upendra Yadav moved the apex court against the Election Commission’s (EC) decision to register its splinter group – Janata Samajbadi Party - under the leadership of Ashok Rai, terming it unconstitutional. Similarly, Nagarik Unmukti Party leader Resham Chaudhary has filed a writ petition at the SC against party chair Ranjita Shrestha and the EC. The election body rejected Chaudhary as party president, citing a criminal offence case against him. If the SC verdicts go in favour of Yadav and Chaudhary, this could upset the governments in the centre and Sudurpaschim Province.

Currently, the constitutional validity of governments of three provinces – Koshi, Gandaki and Sudurpashchim – have come under scrutiny. Former Chief Ministers have filed writs at the SC against the incumbent ones in Koshi and Gandaki provinces, arguing that appointment of new CMs and process of securing vote of confidence was unconstitutional. A two-member bench has barred Gandaki CM Khagaraj Adhikari from taking any long-term decisions. The SC has stated that complex constitutional and legal questions have come to the fore following the writs lodged against the newly formed governments in Koshi and Sudurpaschim provinces. The provincial governments have become unstable and weak, with the court deciding their fate. There is always push and pull between the ruling and opposition parties with the change in the alliance partners in the federal government.

Endless instability 

Ironically, all provinces except Bagmati have plunged into endless instability. The provinces are the extended arms of the federation. Nepal’s federal system is based on mutual cooperation, collaboration and coordination among the three tiers - federal, provincial and local - when it comes to distribution of powers and mobilisation of resources. The constitution has embraced the vision of self-rule and shared rule so that local and provincial entities exercise autonomy and showed their efficiency in delivery of goods and services to the citizens. 

Political parties are the primary actors in democratising and modernising the society. Their repeated failures to resolve the constitutional quandary raise their ability to steer the nation on the path of stability and prosperity. The judiciary should be the last resort to settle the political disputes. If the parties often seek recourse to the court to outsmart their adversaries, they are unlikely to come out of vicious cycle of quarrel, attrition and vendetta.   

(The author is Deputy Executive Editor of this daily.)