Nepal: judging the role of the courts

Nepal’s federal government is rapidly evolving, but the nation’s judiciary must do more to keep up. The powerful role of the courts offers an opportunity to change Nepali political culture and provide leadership, George Varughese and Iain Payne write.

In Nepal, state transformation triggered by its new constitution and the arrival of fresh political leadership through its nationwide elections in 2017 promised more equality and inclusivity. ‘Naya Nepal’ – or New Nepal – guarantees political power being devolved from elite-captured Kathmandu institutions.

The Constitution of Nepal aims to bring government closer to citizens through the implementation of a polycentric federal structure. With 753 new heads of local government and seven new chief ministers, as well as local and provincial assemblies comprising more than 35,000 elected representatives, the executive and legislative arms of government in Naya Nepal are now more visible to citizens than in the past.

Less can be said, however, of its judicial arm. Minimal attention has been given to the judiciary’s role in the transition. The continued failure to invest in this co-equal branch of government undermines the transformational project embarked upon by the 2015 Constitution.

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Three years after its adoption, federal Nepal must re-examine its judiciary’s unfulfilled and important role.

Firstly, the judicial branch has an irreplaceable role in changing political culture. The rule of law requires public justification for the exercise of public power. This process forms an important part of its potential new role and must be championed by the judicial branch.

In the courthouse, the branches of government must exchange reasons to justify the legitimate exercise of power, and governments must be able to defend their actions. The judicial process thus contributes to a constitutional culture that limits the arbitrary use of power.

In this sense, the rule of law is a critical yet missing feature in Nepali political culture which has previously been characterised by impunity and collusion, as well as crises and destabilisation. The judicial branch of Nepali government must salvage, nurture, and return the rule of law to public service.

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Secondly, it must embrace its role as the nation’s constitutional guardian and provide decisive leadership. The Constitutional Bench of the Supreme Court is the ultimate forum in which it can do so.

Tasked with interpreting the Constitution, it provides a constitutionally robust mechanism for governments to debate and contest laws that harm their constituents’ interest.

The court must be a national forum for legitimate and credible dispute resolution, and is crucial for constitutionally mandated co-operation between governments to materialise in real terms. Unfortunately, the internal politics that have historically prevented it from properly functioning perpetuate legal paralysis in Nepal. This continues to significantly hamper the smooth functioning of the provincial and local governments.

Finally, Nepal’s judiciary must address systemic access to justice issues. For example, a coherent and coordinated fit-to-purpose system for locally accessing justice is required. This issue has been inherited from the previous governance setup: the geographical inaccessibility of the country’s 77 District Courts continues to be one of the key reasons why only a fraction of disputes are registered with their appropriate judicial body.

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More than ever before, the Supreme Court presently has more stable leadership and better prepared justices. The court is drafting its fourth strategic plan, which will drive the judiciary’s institutional vision for democratic government in Nepal over the next five years.

However, confining the focus of planning to court administration, as previous plans have done, will be insufficient to ensure that the promise of bringing the whole government – legislative, executive and judicial – closer to the people is fulfilled.

Doing so will require the judiciary to prioritise its role in the government and function as a constitutional guardian, while guiding the creation of a coherent and coordinated fit-to-purpose system for accessing justice locally. Hopefully, Nepal’s judiciary has the confidence, courage, and creativity needed to embrace its role in Naya Nepal.