The Role of the Judiciary and the Supreme Court in the Constitution-Making Process: The Case of Nepal
18 Pages Posted: 22 Apr 2019
Date Written: April 4, 2019
This article examines the role of the judiciary in Nepal after the adoption of the new Constitution and examines its position via the lenses both of the separation of powers and the rule of law. By comparing the present Constitution with the previous constitutional documents of Nepal, it seems that the constitutional drafters on the one hand aimed to enhance the institutional independence of the Supreme Court, the head of the judiciary, but on the other hand, they limited its jurisdiction pertaining to the interna corporis and to the constitutionality review of constitutional amendments.
Furthermore, this article argues that the judiciary does not simply represent one power in the separation of powers system and does not simply hold the role of the gatekeeper of the rule of law. More importantly, as it was shown in the Nepalese case, the judiciary, precisely the Supreme Court, can play a very proactive and creative role in the constitution-making process. Hence, this article offers justifications, both formal and substantive, for the intervention of the Supreme Court in the constitutionalization of the new legal order. This article argues that the existence of an interim constitution may grant direct or indirect authority to the court to intervene in the constitution-making process, for instance by controlling the constituent assembly, reviewing its acts and even certifying the final constitutional document. In addition, the courts’ participation in the constitution-making process might be justified on substantive grounds, such as natural law principles, common constitutional principles, or the so-called supra-constitutional principles that exist in every democratic society and are pervaded in the general belief of the people.
Keywords: constitution making, constituent powers, courts, Nepal
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