Conclusions
Four sets of conclusions on unconstitutional constitutional amendments in the context of constitution making can be drawn from the Nepal case study. First, the language of the basic structure doctrine has seeped into Nepal’s constitutional discourse.
Significantly, Nepal’s saga over unconstitutional constitutional amendments took place under the 2007 Interim Constitution, which unlike its 1990 predecessor and 2015 successor did not contain any eternity clauses. In this respect, I argue that the increase in the stature and activism of the Supreme Court of Nepal since the 1990s emboldened the court to extend its power of judicial review to constitutional amendments extending the term of CA1 and to deploy the language of the basic structure doctrine to justify its intervention.Second, the contested nature of constitutional unamendability coupled with the explosive issue of adjudication on the life itself of the Constituent Assembly raised questions not just about the appropriate constitutional bounds of the judiciary, but about the partisan nature of judicial decision-making under these circumstances. Both the constitutional context and the political milieu of postconflict Nepal are crucial factors in explaining the high degree of judicial intervention by the Supreme Court as well as the consequences of that degree of involvement. In the short term, the court appeared to take a partisan position and was openly accused of doing just that.
Third, Nepal’s post-conflict constitution-making process fits what Silvia Suteu has characterised as the “fraught context” of divided, conflict-affected societies.[504] As such this contentious process was both the backdrop of and the substantive core issue in the protracted litigation over the validity of the constitutional amendments seeking to extend the CA1 term. The problematic nature of the Nepal Supreme Court’s interventions in the life of CA1 resulted from a combination of judicial activism and partisan politics.
On the one hand, the constitution-making process could not continue indefinitely especially since the party leaders had already highjacked the drafting process from the ConstituentAssembly. Moreover, the Supreme Court only put a stop to further extensions by way of constitutional amendment after the fourth time in May 2012, only when a fifth extension was attempted. On the other hand, the involvement of Chief Justice Regmi in executive politics after the dissolution of CA1 retrospectively casted a nefarious light on the intentions of the bench in adjudicating those cases. Moreover, the fact that the 2015 Constitution proved to be such an embattled settlement makes it easy for the groups unhappy with it to place the blame with the Supreme Court.
Finally, the way in which the Supreme Court and its Justices conducted themselves during Nepal's most embattled litigation bore a profound influence on the outcome of the constitution-making process itself, especially with respect to the structure and powers of the higher judiciary. In the long term, the move by the court gave enough justification to constitution-makers to rein in the highest court and to attempt a significant curtailment of its role and function. The result was a compromise, but it is clear that the 2015 Constitution has effectively sought to curb the judicial activism - and the power - of the Supreme Court.