Mukunda Raj Kattel
The rule of law is at democracy’s core. It protects the rights of citizens, maintains order in the society, limits the power of the government and ensures that a level playing field is provided for everyone in terms of social, economic and political opportunities. On occasions, it revitalises the health of democracy by checking the urge of political leaders to indulge in acts that corrode democracy from within. In the last 30 days, the world has seen the democracy-nourishing power of the rule of law in two judgments authored respectively by the Constitutional Court of South Africa and the Constitutional Bench of the Supreme Court of Nepal. In the paragraphs that follow, I will situate both the judgments in their broad political context, and draw key messages from both of them.
South African judgment
At the inauguration of South Africa’s Constitutional Court in February 1995, Nelson Mandela, the first president of post-apartheid South Africa, asked the judges “to stand on guard not only against direct assault on the principles of the constitution, but against insidious corrosion.” Twenty-six years later, the Constitutional Court rose to the occasion, as expected by Mandela, to protect the constitution being corroded by his third successor: Jacob Gedleyihlekisa Zuma.
According to The Economist (July 3rd edition), “no one has done more to corrode the institutional pillars of post-apartheid South Africa than Jacob Zuma.” The corrosions include “the wholesale looting of public funds and the demolition of the parts of the state meant to stop graft” during his nine-year presidency that ended in 2018. Post-presidency, Zuma continued to mock the institutional pillars of democracy, including the Constitutional Court.
The day of reckoning came on June 29. The Constitutional Court sentenced Zuma to an unsuspended term of 15 months in jail for defying the Court order to appear before the commission set up to investigate allegations of corruption and state capture during his presidency. The Court said “when a public office-bearer or government official, or any citizen, announces that he or she will not play by the rules of the Constitution,” it becomes the duty of the Court to send an “unequivocal message” that in a democratic dispensation, “the rule of law and the administration of justice prevails” and not the specious whim of an individual, whatever powerful, charismatic or oratorial.
Although the Court has “no constituency, no purse and no sword,” said the judgement, the Court “must rely on moral authority” to stand tall and perform its duty as the custodian of a democratic order, suggesting that the likes of Zuma, who have money and power, should not be allowed to challenge the authority of the Court.
Thirteen days after the Zuma-verdict, the Constitutional Bench of the Supreme Court of Nepal reinforced: “no public office holder is above and beyond the constitutional boundaries” and “everyone submits equally to the rule of law” (paragraph 98). This was in response to the claim by the Office of the President, and the Office of the Prime Minister and the Council of Ministers that whether to appoint a prime minister or not, as per Article 76 (5) of the Constitution of Nepal, is the prerogative of the President and it cannot be challenged in the court. The Constitutional Bench did not agree. It instead countered that any activities undertaken by the President concerning the use of and compliance with the constitution can be legally challenged and reviewed. The Bench added, “Not to do so is to create the condition for the rise of arbitrariness and autocracy, which the Constitution of Nepal does not allow.”
The case against President Bidya Devi Bhandari reached the Constitutional Bench following her denial, on May 21, to accept the claim by Nepali Congress President Sher Bahadur Deuba to form the government despite the latter presenting the support of 149 members (13 more than legally needed) of the House of Representatives (HoR). Duba had staked the claim of the government following the KP Oli cabinet of the day losing the vote of confidence in the HoR.
The President, however, rejected Deuba’s claim by, as the Constitutional Bench has pointed out, interpreting legal provisions about the formation of the government contrary to the principles of constitutionalism, constitutional morality and democratic values. The President treated Deuba’s claim on par with the counterclaim by KP Oli, who had the support of only three members (133 short of the required figure), and reject both claims in favour of Oli’s recommendation to dissolve the HoR. The saga of the claim, counterclaim and denial unfolded in such a manner “that is,” as the Bench has noted, “rarely seen and found in the constitutional law of democratic countries” (paragraph 118).
Among many takeaways inherent in the judgment, three are of far-reaching consequence. First, the HoR elected by the sovereign people cannot be dissolved out of political convenience and expedience of the head of the executive. Doing so exacts a heavy cost, both economic and political, on the people and can even be detrimental to the health of democracy in the long-run. Second, the letter and spirit of the whole of the constitution should resonate in the interpretation of a law or a part thereof. The illiberal interpretation of a liberal constitution is antithetical to the rule of law, which courts must stand on guard against. Third, the judiciary in a democratic order has jurisdiction over all cases, including those that involve the so-called ‘political question.’ It is the courts – and no other entities – that decide whether an issue is politically charged and how to handle it.
The two judgments are world-class. They should be read by everyone interested in democracy and the rule of law. Not only have they disentangled the legal question before them and settled the dispute for local consumption, they have, in doing so, also reaffirmed and reconfirmed the place of constitutional supremacy in a democratic order. Equally noteworthy is the clarion message that populism – the ‘I’ culture: ‘I know all,’ ‘what I say and do is final,’ ‘I am the true representative and the saviour of the people and I play by the rule that I design’ – should have no place in a constitutional democracy. Let these judgments rekindle – and add to – the energy of those fighting for democracy and the rule of law around the world.
(A PhD on human rights and peace, Kattel is a senior research fellow at Policy Research Institute. firstname.lastname@example.org)