The judiciary is the system of courts that interprets, defends, and applies the law of the land. It is a mechanism of resolution of disputes. The doctrine of the separation of powers defines the division of a state’s government into different branches each with separate independent powers and responsibilities. The powers of one does not conflict with another. Typical division includes three branches – a legislature, an executive and a judiciary, which is known as the trias politica model. There are also other models of division. The concentration of power in one branch is prevented by providing for checks and balances by this system of separation of powers. The judiciary generally does not make statutory law, which is the responsibility of the legislature. It also does not enforce law, which is the responsibility of the executive. Judiciary in fact interprets, and defends the law. In some countries it could also make common laws. In many jurisdictions, judicial branch has the power to change laws through the provision of a judicial review. Laws and the rules of the state can be annulled when judicial reviews find them incompatible with provision of the constitution, treaties or international law. Judges are a critical force for interpretation and implementation of a constitution of the country. Supreme courts of many jurisdictions is the highest court of the country and its rulings mostly go unopposed. On July 12, Nepal’s Supreme Court has delivered a historic verdict to alert the executive that it must always take decisions within the rule of the land. The decision in a 165-page court order reinstates the House of Representatives (HoR), removes Prime Minister KP Oli who has been running a caretaker government and upholds the leader of the opposition’s claim of Sher Bahadur Deuba as the new prime minister.
Check and balance In fact, this decision has played a crucial role in the check and balance that needs to be applied through the separation of powers. However the question now is: will there be a smooth transition in the current Nepali politics? Is the proposed Prime Minister any better in ruling the country as opposed to the proposed outgoing one? In fact, all sorts of political bantering, rivalries, nepotism and power hungry tendencies of political leaders, both in the governing and opposition, have been more of a comedy of errors rather than exemplary leadership with statesmanship to gear the newly established federal system in Nepal towards prosperity of the people. “The recent Supreme Court ruling makes me wonder if judiciary is moving towards activism?” questions Chandra Kishore Jha, a senior journalist. He adds that reinstating the House of Parliament is a good move but asks: “Why did the Supreme Court also mention who should be the next Prime Minister?” The parliament should decide that.” Analysts like Jha and the general population in Nepal are now speculating on various aspects of what has led to this recent development in Nepal. The question of how independently the judicial roles are played and how responsible the executives are towards the people are being raised several times. The SC interpreted that the prime minister heading the largest party in parliament, appointed under Article 76 of the constitution could not get a vote of confidence in the parliament, therefore, he could not retain the post. In May, PM Oli had recommended the President to dissolve the HoR. This decision was challenged in the court by a coalition of opposition parties who claimed to have support of a majority in the parliament to form government. The apex court has reinstated the Lower House twice within a year. Once was when PM Oli dissolved it in December 2020 and called for elections in April 2021. The court rejected this and reinstated it in February 2021. PM Oli again had the President dissolve it in May 2021 and planned for elections in November 2021.
Dilemma The role of judiciary and executive in Nepal is now a household talk and people are debating on what is right and what is wrong. Unfortunately, debates in Nepali households and national level are usually influenced by party politics and external influence of cross border neighbours and friendly nations. The time has come for the Nepali people and political leaders to shed this habit and focus on what is good for the country and the population who is already merged in a dire dilemma of survival from the ongoing pandemic and natural disasters, not to mention the struggle of a livelihood leading them towards prosperity. During the last couple of decades, the Nepali political scenario has witnessed major changes where the country is moving from one democratic set up to another. The people and political leaders must be given credit for this progressive change. However, another fact also is that during this period the political leaders have been involved a lot in petty party politics, personal ambitions and nepotism. This has led to downfall of governments and splitting up of parties. Instead of uniting to lead the country and the population who have voted them to power, poor governance and ruling strategies have overarched the socio-political atmosphere. There is also a tendency of having the same person as Prime Minister for several times in Nepal. I wonder if anyone of these premiers has ever reviewed their policies and impacts of their actions during their premiership for the welfare of the country before they occupy that same position again. The portfolio of ministerial roles come with a financial package that dents the fiduciary of the country and hopes of the people which gets marred every time wrong decisions are made.
(Namrata Sharma is a senior journalist and women rights activist. firstname.lastname@example.orgTwitter handle: NamrataSharmaP)