Introduction
Judicial interventions in questions of constitutional unamendability are usually contentious, but become even more controversial when they encroach upon the activity of constitution making.
Adjudication over unconstitutional constitutional amendments already interrogates the appropriate limits to judicial involvement in the constitutional sphere. However, when this kind of adjudication is coupled with direct judicial interference in the exercise of constituent power, the notion of constitutional supremacy clashes even more directly with that of popular sovereignty, and the realm of law and the realm of politics explosively collide. I argue that such a clash between the legal and the political is exasperated when judges intervene in a constitution-making process that is carried out through a Constituent Assembly. This is because a Constituent Assembly embodies the highest modality of constitution making and represents an instance of extraordinary constitutional politics. As Andrew Arato explains, Constituent Assemblies are the archetype of revolutionary constituent power: they are conceptualised as sovereign institutions with unlimited powers; they embody the unified will of the people and promise a total rupture from the old regime through a foundational moment.[463] However, this contribution aims to show that in practice Constituent Assemblies - even highly representative and diverse bodies like the one in Nepal - are often sidelined in constitution-making processes and the task of actually writing the constitution is carried out by a much smaller group of political actors belonging to the dominant elites resulting in the effective exclusion of already marginalised groups.[464] So under what circumstances is judicial encroachment on the life and work of a Constituent Assembly warranted, and what is its long-term impact?This chapter explores the relationship between adjudication on constitutional amendments and constitution making through an in-depth analysis of a single case study, that of Nepal's first Constituent Assembly (“CA1”), which operated between 2008 and 2012 in a post-conflict context.
Nepal represents an extreme instance of the politics of constitutional unamendability. The chapter focuses on the interventions by the Supreme Court of Nepal in the disputes over the extension of the CA1 time limit through constitutional amendment, and the political context of this protracted litigation. The initial two-year term of CA1 (May 2008-May 2010) was extended four times by way of constitutional amendment of the initial Assembly’s term under Article 64: first, by a year (May 2010-May 2011) under the 8th Amendment of the 2007 Interim Constitution; second, by three months (May-August 2011) under the 9th Amendment; third, by other three months (August-November 2011) under the 10th Amendment; and finally by six months (November 2011-May 2012) under the 11th Amendment. A fifth attempt to extend the Assembly by other three months (May-August 2012) was made by tabling the 13th Amendment Bill, but was ultimately unsuccessful.Judicial activism in this area grew exponentially after the third extension of CA1 with the 10th Amendment of the Interim Constitution in August 2011. Until that point the Supreme Court had been rather deferential to the elected branches by deploying the doctrine of necessity. However, as new petitions kept coming in to challenge the constitutionality of the amendments, on 25 November 2011, the Supreme Court took a firmer stance and held that any further extensions of the Assembly’s term would be a violation of the 2007 Interim Constitution and that the amendment would be held unconstitutional.[465] However, when CA1 failed to complete the drafting of the new constitution within the extended timeframe, on 22 May 2012 the government tabled another bill to amend the constitution and extend the CA1 term further. Immediately, yet another petition was filed in the Supreme Court seeking a stay order on the proposed amendment. On 24 May, the court issued the order demanded by the petitioners and effectively disallowed any further extensions.
It therefore effectively placed constitutional limitations to the existence of CA1 beyond its term.[466]Last-minute political negotiations over finalising the new constitution became frantic in the shadow of the judicial ban and the looming definitive deadline. Ultimately, any last-minute attempts to salvage the constitution-making process were unsuccessful and CA1 was dissolved on 27 May 2012 by the President on the recommendation of the Prime Minister. New elections for a second Constituent Assembly (“CA2”) were called for immediately, but did not take place until November 2013. As a result, Nepal remained without a functioning legislature and constitution-making body for over a year and half in a crucial phase of the peace process. Moreover, Supreme Court Chief Justice Khil Raj Regmi, who had
Limiting constituent power? 135 adjudicated the majority of the controversial cases on the CA1 dissolution, was appointed as the Head of the Interim Cabinet to lead the country through the transition. This represented a clear violation of the doctrine of separation of powers and proved to be a disastrous move for the Court's reputation. As a result, the country's constitutional moment was irremediably lost. The failure of CA1 set the trajectory of Nepal's constitution making under CA2 onto an entirely different political course, which did not prioritise inclusion in its agenda and sought to rein in the judiciary, in particular the Supreme Court. As a result, the new constitutional settlement reached under the 2015 Constitution alienated many segments of Nepali society and engendered long-term political instability.
The focus on Nepal as a case study teases out the importance of the political context in adjudicating the constitutionality of a constitutional amendment. It is not sufficient to conduct a purely doctrinal analysis of the judicial reasoning in the key decisions and an analysis of the constitutional framework to examine the question of unamendability.
It is also critical to include a broader political view of the events and context of the litigation, and consider the balance of power between different political actors. To do so, the chapter examines, first, the constitutional context of Nepal to explain from a historical perspective the powers of the Supreme Court and the configuration of constitutional amendments. Second, it explores the context and outcomes of the litigation over the dissolution of CA1 with a specific focus on the unconstitutionality of constitutional amendments. Third, it analyses the impact of the Supreme Court decisions concerning the constitutionality of the CA1 extension on both the constitutional position of the judiciary and the long-term political and institutional developments in Nepal.This chapter draws four sets of conclusions from the Nepal case study that fit neatly with the classification of the Nepali experience as an instance of the “denotive model” by the volume editors.[467] First, the language of the basic structure doctrine has seeped into Nepal's constitutional discourse, partly through the inclusion of eternity clauses under the previous 1990 Constitution and through constitutional borrowing from other South Asian jurisdictions - India in pri- mis. This was the case even if the 2007 Interim Constitution did not contain any eternity clauses, pointing to a consolidation of the Supreme Court's powers, activism, and constitutional role. Second, the contested nature of constitutional unamendability coupled with the explosive issue of adjudication on the life 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. Third, Nepal's post-conflict constitution-making process fits what Silvia Suteu has characterised as the “fraught context” of divided, conflict-affected societies.[468] 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
term of CA1. Finally, the voluble 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.
7.2