The constitutional context of Nepal
To understand the controversies over the Supreme Court's adjudication on constitutional amendments and the dissolution of CA1, it is crucial to appreciate Nepal's constitutional developments since 1990 and the newly acquired role of the Supreme Court.
7.2.1 The development of the principle of constitutional supremacy in Nepal
One of the few Asian countries that was never colonised, Nepal historically played an important strategic function at the margins of the British Empire. Featuring a long history of authoritarian governance, the country's first experiment with constitutional democracy in the 1950s was short-lived and saw a return to autocracy in 1960.[469] After 30 years of monarchical absolutism under the Panchayat regime (1960-90), in 1990, a pro-democracy movement launched by the underground political parties succeeded in forcing the king to dismantle the Panchayat regime and to initiate a process of re-democratisation centred on drafting a new constitution.[470]
The 1990 document - Nepal's fifth constitution - established a constitutional monarchy with a parliamentary system. The drafters looked at the British Constitution for political mechanisms to keep the monarchy within constitutional bounds. However, they ultimately opted for legally enforceable mechanisms of executive accountability and explicitly borrowed India's model of constitutional supremacy. The 1990 Constitution gave the Supreme Court the power to review the constitutionality of legislation and entertain public interest litigation (PIL). It also included an extensive list of justiciable fundamental rights opening the courthouse doors to extensive constitutional litigation.
The 1990s also saw another political development that would alter the course of Nepali history. In 1996, the Communist Party of Nepal (Maoist) launched from the countryside a ten-year insurgency against the government that they called the “People's War” (1996-2006).
Treated by the government as aLimiting constituent power? 137 slow-burning local problem at first, the conflict eventually intensified and became a country-wide emergency. Politically, it progressively led to the marginalisation of the parliamentary political parties and a standoff between the Maoist insurgents and King Gyanendra Shah, who was supported by the Army.[471] Resolution of the conflict became inextricably intertwined with constitutional change in 2001, when the Maoist demands for the abrogation of the 1990 constitution and the election of a Constituent Assembly became non-negotiable. From the outset, the insurgents’ demands had included radical constitutional change to abolish the 250-year-old Shah monarchy, declare Nepal a secular state, and achieve greater social inclusion through a sweeping programme of state restructuring. As such, constitutional reform became the main goal and battleground of identity politics in the country. In fact, the re-democratisation of 1990 had merely exacerbated economic and political inequality among the many socio-cultural groups in the country.[472]
The changes to the judiciary under the 1990 Constitution encouraged a great deal of constitutional litigation. In terms of access to justice, the relaxation of the rule of locus standi also opened the courtroom’s doors to a growing number of litigants. The Supreme Court sought to streamline PIL petitions,[473] but the number of PIL petitions continued to increase. Since 1990, the Supreme Court has also heard a number of high-profile constitutional cases on salient political issues. These cases have provoked questions about whether the courts are the most appropriate venue to resolve political controversies, as well as allegations of increasing politicisation of the judiciary. This trajectory began with a 1991 judgment in which the Supreme Court decided the first and only case concerning the actions of the king.[474] Soon after, Nepal’s apex Court was called upon
with increasing frequency to intervene in quintessentially political disputes.
In the mid-1990s the Supreme Court became embroiled in four cases pertaining to the dissolution of Parliament’s lower chamber, the House of Representatives.[475] The Supreme Court struggled to articulate a consistent “political question” doctrine and appeared to decide cases in a partisan fashion according to the political party at the helm of government. In the last of these cases, the Supreme Court upheld in 2002 the validity of the dissolution by the Prime Minister over the House’s inability to secure an extension of the state of emergency at the height of the civil war.[476] In this instance, the dissolution of the House and its judicial validation reopened the door to monarchical autocracy with a takeover by King Gyanendra.[477]It was only in 2005 that the Maoists and the mainstream political parties eventually agreed to repeal the 1990 Constitution and adopt a new constitution to be drafted by a directly elected Constituent Assembly. In April 2006, they launched a joint movement against the autocratic monarchy and succeeded in restoring parliamentary democracy. The Interim Constitution was adopted on 15 January 2007 to pave the way for the election of the Assembly. It was under this document that the litigation over the extension of the CA1 term was conducted. Significantly, much debate over the structure and power of the judiciary took place within the Drafting Committee - with strong pushes from the Maoists and other left-wing parties to limit the powers of the judiciary.[478] In the end, the Interim Constitution remained silent on the issue of the monarchy, declared Nepal a secular state, retained ample similarities with the 1990 Constitution, created a unicameral Interim Legislature, and preserved the wide powers of the Nepali judiciary.[479]
7.2.2 Post-conflict constitution making in Nepal
Nepal’s peace process essentially entailed two steps: the integration of Maoist combatants into the Nepal Army, which was completed by April 2012, and the drafting of a new Constitution - Nepal’s seventh - by a directly elected body
Limiting constituent power? 139 deputed to secure the inclusion of the country's many marginalised groups by institutional means. Radical constitutional change became the primary intended vehicle for state-restructuring and the peace process' mantra of “naya Nepal banaune” (building new Nepal).
This agenda was controversial and many of the political forces involved in constitution making did not subscribe to it - indeed, they fiercely opposed it in any way possible.The election of CA1 eventually took place in April 2008 and delivered a relative Maoist majority to the surprise of many observers. At its first meeting, CA1 abolished the Shah monarchy and declared Nepal a republic. The sense of anticipation was enormous as the new constitution was expected to deliver on the promises of the People's War. However, the life of CA1 was marred by political instability from its inception. Functioning as both the constitution-making body and the legislature, the Assembly became embroiled in the controversies and tussles of both ordinary and extraordinary politics. Moreover, as the Assembly was divided along both party and identitarian lines, the place of identity and demands for recognition proved to be the most contested aspects in the drafting the new constitution. By May 2010, all of the Thematic Committees' reports had been discussed in plenary sessions, but no consensus could be reached on the most contentious issues: federal restructuring along identity lines, presidential versus parliamentary government, and the judiciary. As a result, the new constitution could not be finalised even if agreements had been reached at the Committee stage with a few members dissenting.[480]
CA1 then bought itself more time by amending the Interim Constitution to extend its own term by one year in May 2010 through an amendment of Article 64 of the Interim Constitution (8 th Amendment). At this point, the task of resolving these issues was removed from the open public debates of the body directly representative of the Nepali people and put into the hands of the old guard leaders of the main parties. These men negotiated crucial decisions about Nepal's new constitutional settlement, mostly through the High Level Political Committee (HLPC), which had been set up in January 2010.
As a result, no inclusive and transparent deliberations within CA1 were allowed to iron out the differences between the various political forces. Ultimately, backdoor secret negotiations, opaque deals outside the Assembly, and the overall lack of transparency undermined the legitimacy of the constitution- making process itself. At the same time, the political leaders failed to forge a compromise solution, notwithstanding three further extensions of the CA1 term, while effectively side-lining the Constituent Assembly itself. “Postponing,” or rather “delaying,” the entire constitution-making process was the strategy adopted by the political parties in opposition, since no consensus could be found on key issues. The opaque modus operandi of the party leaders effectively legitimised to a certain degree this set of increasingly forceful judicial interventions.7.2.3 The constitutional treatment of amendments in Nepal
Nepal's recent permanent constitutions have adopted eternity clauses, unlike the 2007 Interim Constitution. Nepal first adopted an Indian-inspired basic structure doctrine under the 1990 Constitution through an eternity clause that forbade amendments contrary to the spirit of the Preamble under Article 116. The rationale for this choice was to preserve constitutional monarchy and multiparty democracy, which represented the basis of the political compromise behind the 1990 document: on the one hand, the king endeavoured to prevent a republican turn, while on the other hand, the political parties sought to preclude a return to monarchical absolutism.[481] Meanwhile, left-wing parties were dissatisfied with the arrangement as they feared that it would lead to judicial activism and prevent the political branches from carrying out essential reforms.
The 2007 Interim Constitution lacked such an eternity clause because it was expected merely to provide the legal basis for the Constituent Assembly to adopt a permanent constitution. However, it was under the 2007 Interim Constitution that the Supreme Court restricted the Constituent Assembly's ability to adopt amendments that would extend the Assembly's own term.
The inclusion of an eternity clause in the 2015 constitution can be viewed as implicitly recognising the role of the courts in striking down unconstitutional constitutional amendments. Nepal's 2015 constitution is difficult to amend and Article 274 requires a qualified majority of two-thirds of the members of both Houses of the Federal Parliament and the assent of the President. The eternity clause further specifies that no amendment may violate the constitution's basic structure by contravening Nepal's independence, self-rule, territorial integrity, or the principle of popular sovereignty.[482]
7.3