Effective Constitutional Bench For Prompt Decisions

Promulgation of the new constitution through the Constituent Assembly was a dream of people, and it was materialised through an elected body. There were several debates on various issues relating to the federal governance system. However, voices are raised to review the constitutional provisions while celebrating Constitution Day today. It is the responsibility of the concerned stakeholders to conduct in-depth research on the implementation status of the constitution for its better functioning. While just raising voices is a political matter, making a thorough assessment is a practical and constructive idea. 

Federalism and its model of power sharing were one of the thorny issues in the Constituent Assembly. There was an intense debate in the Constituent Assembly regarding the constitutional provision on inserting the provision of constitutional court or constitutional bench. The political parties were divided over the issue. Some political parties were adamant on inserting the provision of the Constitutional Court, while others were divided on the issue. The leadership of the judiciary was also vocal about inserting the provision of a constitutional bench instead of a constitutional court. After a long discussion between political parties and other stakeholders, they came to an understanding on the provision of a constitutional bench within the Supreme Court.  As the constitutional bench is the meeting point of the political parties and the stakeholders, the bench has an important role to settle disputes of federal affairs. Conducting debate on the issue and functioning of the constitutional bench is natural because its provision was inserted with high importance. Stakeholders have high expectations of the constitutional bench and its prompt justice delivery.  

 Constitutional provision

The Constitution of Nepal, promulgated by the Constituent Assembly, has the provision of the Constitutional Bench within the Supreme Court of Nepal, comprising of five justices chaired by the Chief Justice. This is the final body to interpret the constitution in the case of disputes raised between federal, provincial, and local governments. Article 137 of the Constitution of Nepal provides that the disputes relating to jurisdictions between the federation and a state, between states, between a state and a local level, and between local levels shall be settled by the Constitutional Bench. Similarly, Article 234 and Article 235 have the provision of intergovernmental dispute settlement mechanisms. The Parliament has also enacted the Federation, Province, and Local Level (Coordination and Inter-Relation) Act, 2077 BS. This provision has definitely expanded the constitutional provisions for intergovernmental dispute settlement. The bench is also assigned to settle disputes relating to the election of the members of the federal parliament or state assembly and matters relating to disqualification of a member of the federal parliament or the state assembly.

Under the federal arrangement, the final authority is given to the court or bench to interpret the constitution. Some of the federal countries, like South Africa and Germany, have constitutional courts, while countries like Nepal, the USA, and India have the  provision of a constitutional bench for this purpose. 

However, effective functioning and justice delivery matter while talking about the constitutional bench under the federal system of Nepal. The efficacy of the constitutional bench is also linked with the effective implementation of federalism in Nepal. In this line, this is the new experiment in Nepal, like federal practices. Recently, there are an overwhelming number of cases on the constitutional bench, and it is also mired in a resource crunch to deal with the cases. Constitutional provision does not function alone. They function well when there is constructive interpretation from the court and effective implementation from the levels of executives—federal, provincial, and local.  

Prompt justice delivery 

Although the constitutional court has settled several disputes, it is often criticised for delayed justice. For ensuring prompt justice, there are some solutions. First, it should be well equipped with resources and logistics. It should be enhanced with proper human resources and a sufficient budget. Second, the justices of the constitutional bench should not be assigned to handle the cases of other regular process.  There is a difficulty in the arrangement of cases of the constitutional bench when the justices of the bench have to look after other regular cases. The nature of the constitutional bench is different from other regular processes. It is different in terms of theory and practices.  It should be developed as an expert bench for the implementation of federalism. Remaining indecisive for a long time may raise questions. So, prompt justice delivery is important.   

Intergovernmental relations

Maintaining intergovernmental relations is equally important for the smooth functioning of federalism. There are several cases regarding federal, state, and local-level jurisdictions. If there is a smooth relationship between the constituent governments, there shall be a ground for peaceful environment for change and development. The nation sometimes witnesses hostile relations between the multiple layers of government, and sometimes hierarchy or superiority and inferiority issues are raised. Local and provincial governments blame the central government for jurisdiction overlap and for not allocating adequate budgets. At the same time, the central government blames the subordinates for being anarchist. The debate between Kathmandu Metropolitan City and the federal government regarding garbage management is one of the examples that widened the gap between multiple layers of government. 

The constitutional bench has also the duty to maintain smooth relations through its verdict. Just issuing a verdict is not enough. Maintaining smooth relations among the tiers of government is more important. Intergovernmental relations are also an evolutionary process depending on the country's socio-economic condition. The constructive role of all spheres of government is important to maintain smooth relations among the constitution-implementing agencies. 

There is an increased importance of the constitutional bench with the functioning of federalism. Debates over jurisdiction, working styles, the lawmaking process, and budget management are common in a federal governance system. The constitutional bench holds the authority to resolve the disputes related to the implementation of federalism. So, it should be properly equipped with the necessary logistics and enhanced capacity to perform effectively. It would  be wise to first assess the implementation of the constitution  before discussing any review of the constitutional   bench's functioning.  

(Upadhyaya is an Associate Editor at The Rising Nepal.)