The aftermath of the dissolution
The impact of the Supreme Court cases on the extension of the CA1 term and the unconstitutionality of constitutional amendments had several effects on the reputation and constitutional position of the Court.
In the short term, the Court appeared to take a partisan position. Indeed, the Court was openly accused of that, especially after the Chief Justice became the Head of the Interim Cabinet, which created an unprecedented constitutional crisis. In the long term, these judgments gave sufficient justification to constitution-makers to rein in the Supreme 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 of the Supreme Court.First, in February 2013 negotiations to form a government began amongst the main political parties, and Chief Justice Khil Raj Regmi was put forward as a candidate for Prime Minister. Ironically, the prospective government was named “Nepal Interim Election Council” to obscure the fact that Nepal's key executive institution was to be led by the Head of Nepal's judiciary - a blatant violation of the doctrine of separation of powers. Regmi was also the adjudicator on the key constitutional cases that had led to the dissolution of CA1. The International Commission of Jurists, amongst other organisations, called for Regmi to step down from his judicial appointment as he was only on temporary leave from his post. In fact, the agreement amongst the four main political parties provided that Regmi would refrain from participating in his duties as Chief Justice of the Supreme Court while exercising the powers of the Prime Minister, but that after the elections had taken place, he would resume his position and regular duties as Chief Justice.[497]
On 26 February 2013, Advocates Chandra Kanta Gyawali and Om Prakash Aryal filed a writ petition in the Supreme Court demanding that the appointment of Khil Raj Regmi as Prime Minister, which had been made by Nepal's President Ram Baran Yadav, be withdrawn.
The Supreme Court, however, kept the petition pending and refused to entertain it. In an effort to close ranks and present a united front, the deafening silence of the Supreme Court dented its image even further. On 14 March 2013, a new consensus government was constituted. It was composed of ministers appointed by the political parties and headed by Chief Justice Regmi. This caused an unprecedented constitutional crisis, even if the CA2 elections were eventually held in November 2013 after two postponements.On 22 January 2014, CA2 held its first meeting. As a result, in February 2014, Chief Justice Regmi stepped down from his executive post, and was replaced by the Nepali Congress President Sushil Koirala. Finally, on 28 March 2016 the Supreme Court entertained the petition filed in 2013 by Advocates Gyawali and Aryal on the appointment of Khil Raj Regmi as Prime Minister - over two years after Regmi had stepped down. The Constitutional Bench comprising Chief Justice Kalyan Shrestha, and Justices Sushila Karki, Baidyanath Upadhyaya, Gopal Parajuli, and Om Prakash Mishra, quashed the writ petition on the basis that it had become irrelevant as that Council of Ministers was no longer in place. Kalyan Shrestha and Sushila Karki, however, registered a differing view in the majority’s decision and maintained that the move of appointing Regmi as Prime Minister was against the Interim Constitution, the doctrine of separation of power, and the principles of checks and balances.[498] But it was too little too late. Sushila Karki, in a BBC interview on 1 July 2016, reiterated that the Nepali judiciary was still paying the price for Regmi’s appointment as Prime Minister while serving as Chief Justice.[499]
Second, the controversial constitutional litigation that led to the demise of CA1 and the saga of Chief Justice Regmi gave ammunition to the politicians openly advocating for a diminished role of the Supreme Court. These arguments had already emerged during the drafting of the Interim Constitution and were even more forcefully proposed by left-wing parties in CA1. In December 2011 - a month after the controversial Supreme Court decision barring further extension of the Assembly - a report by the International Crisis Group summarised the debates over judicial reform within CA1:
The issue of the judicial system...
remains controversial in legal circles. A constitutional court has been proposed, as well as appointment of judges by an independent body that includes representatives from parliament. This is a considerable change from the original concept, primarily put forward by the Maoists, which would have limited the authority of the Supreme Court; provided that constitutional disputes would be settled by a parliamentary body; and would have made all judges political appointees. The legal community is a significant constituency for politicians to alienate, given the increasing appeals to the Supreme Court on the peace process and politically important issues such as extension of the CA and pardons for crimes committed by party members.[500]After years of lobbying by the legal profession, eventually a compromise was reached in CA2: the proposal for a separate Constitutional Court was scrapped, and instead a Constitutional Bench within the Supreme Court was created. It remains an unsatisfying compromise for many judges and lawyers, who identify this as part of a wider, concerted assault on the Nepali judiciary.
The 2015 Constitution weakens the position of the Supreme Court in three respects:
(i) Under the 2015 Constitution, the ability to review legislation is confined to the newly established Constitutional Bench, which is now the only judicial organ allowed to adjudicate on the validity of legislation on the basis of constitutionality, resolve disputes between the various tiers of government, and determine electoral controversies. The reliance on the smaller Constitutional Bench is causing the Court's already sizeable constitutional backlog to increase considerably and thus undermines the viability of the combination of judicial review and PIL.
(ii) The 2015 Constitution has relaxed the requirements for impeachment, threatening to undermine the independence of the judiciary.[501] Indeed, the easing of the impeachment requirements under Article 101 has already facilitated two failed impeachment attempts at the Supreme Court level in September 2016 against Justice Ananda Mohan Bhattarai,[502] and another in April 2017 against Chief Justice Sushila Karki.[503]
(iii) The 2015 Constitution retains the procedure for judicial appointments introduced by the 2007 Interim Constitution.
It requires all nominations to Chief Justice and all Supreme Court Justices, members of Judicial Council, Head or official of Constitutional bodies, and ambassadors be reviewed by the Parliamentary Hearings Committee (PHC). Article 293 clearly states that “constitutional bodies must be accountable and responsible to the Federal Parliament” embedding the principle of parliamentary scrutiny and oversight. This procedure is redundant as the constitutional bodies, in which the executive is in a majority, already perform the function of vetting candidatesLimiting constituent power? 149 and finding an agreement among the various institutional actors. The Parliamentary Hearings Committee is borrowed from the American model, which aims to ensure parliamentary oversight of presidential nominations. In Nepal, the PHC procedure has been considered a formality until very recently, but in August 2018 the PHC rejected the nomination of Acting Chief Justice Deepak Raj Joshi in what appeared to be a politically motivated decision by lawmakers from the government’s party. Moreover, the effectiveness of the constitutional bodies in dealing with issues pertaining to the judiciary - including misconduct - had already been tested in March 2018, when the Constitutional Council removed Chief Justice Parajuli from his post on the basis of the mandatory age requirement for retirement.
7.5