The principle of the separation of powers is a fundamental principle in the structure of modern democratic governance. It divides governmental powers into three branches: the executive, the legislature and the judiciary. The idea behind this separation is to prevent any single branch from accumulating too much power, ensuring a system of checks and balances that maintains democratic integrity and upholds the rule of law. In theory, each branch operates independently and acts as a counterbalance to the others, safeguarding individual freedoms and preventing authoritarian rule.

In the context of Nepal, the separation of powers has faced significant challenges in the post-republic era, particularly after the abolition of the monarchy in 2008. While the country formally transitioned into a republic, the violation of the principle of separation of powers has led to institutional weaknesses and the erosion of democratic values. This article explores the significance of the separation of powers in a democratic system, examines instances of its violation in Nepal’s post-republic era and highlights the consequences for the nation’s democratic health.

Importance of separation of powers

The separation of powers plays a crucial role in preventing the abuse of power by ensuring that no single entity has control over all aspects of governance. By dividing authority among different branches of government, each one serves as a check on the others, protecting citizens’ rights and preventing any one branch from becoming too dominant.

This system also promotes accountability. When power is shared, the legislature can scrutinize the actions of the executive, and the judiciary ensures that laws are applied fairly and impartially. This encourages transparency and makes those in power answerable to the public.

One of the most important aspects of the separation of powers is its role in safeguarding individual freedoms. The judiciary acts as a guardian of constitutional rights, ensuring that neither the executive nor the legislature can infringe upon fundamental freedoms. This protection helps to maintain a free and just society.

Moreover, the separation of powers contributes to the stability of governance. By distributing power among different branches, it helps counterbalance fluctuations or the concentration of power in any one area. This balance prevents instability and ensures that the government remains fair and resilient, even during times of political change.

Violation unabated

Nepal, after the declaration of the republic in 2008, adopted a democratic framework based on the principle of the separation of powers. However, the country’s post-monarchical era has seen numerous violations of this principle, which have had serious repercussions on the health of Nepalese democracy.

Executive overreach, legislative subjugation

One of the primary violations in Nepal’s recent history involves the dominance of the executive branch over the legislature. Since the reemergence of the parliamentary party system in Nepal in 1990, the House of Representatives has been dissolved six times. The fifth dissolution occurred on 20 Dec 2020, when Prime Minister KP Sharma Oli, acting on the recommendation of his cabinet, advised President Bidya Devi Bhandari to dissolve the House. President Bhandari accepted the recommendation the same day and announced that elections would be held in two phases: 30 April and 10 May 2021.

However, on 23 Feb 2021, the Supreme Court ruled that the dissolution of the House of Representatives was unconstitutional and ordered its reinstatement. The court issued a mandamus, directing that the House be convened within 13 days. As a result of the ruling, a session of the House was held on 7 March 2021.

In the sixth instance, on 22 May 2021, Prime Minister Oli again recommended to President Bhandari the dissolution of the House and the scheduling of mid-term elections for 12 Nov and 19 Nov 2021. The President accepted the recommendation, and the House of Representatives was dissolved once again, with the election dates announced accordingly.

Impeachment

In Feb 2021, Nepal’s ruling parties filed an impeachment motion against Chief Justice Cholendra Shumsher Rana, making him the second chief justice in the country’s history to face such a motion, following Sushila Karki in 2017. At the time, the Nepali Congress, the CPN (Maoist Center) and CPN (Unified Socialist) supported the motion against Rana, with Sher Bahadur Deuba as prime minister. The motion against Karki, filed in 2017, was led by Congress lawmaker Min Bahadur Bishwakarma, while the current motion against Rana was proposed by key figures from the ruling parties.

Karki’s impeachment led to her suspension and Gopal Parajuli temporarily taking over, with Rana later staying the motion. After Parajuli’s resignation, Rana became chief justice in 2019. Now, almost five years later, Rana faces his own impeachment motion, primarily due to accusations of corruption, misconduct and failure to perform his duties.

Consequences

When one branch of government begins encroaching on the others, it weakens the very foundation of democratic institutions. The independence and effectiveness of these institutions are compromised, leading to a loss of public trust in the democratic process. Over time, this erosion of faith increases the risk of authoritarianism taking root.

In Nepal, the manipulation of the separation of powers has contributed to political instability. Political parties often use state institutions to consolidate their own power, which has led to ongoing factionalism and conflict. This pattern is evident in the frequent changes in government leadership and the breakdown of the political system, leaving the country in a state of uncertainty.

For the people of Nepal, this constant political drama has led to growing disillusionment. The disregard for constitutional principles has made citizens skeptical of the political process, which in turn has resulted in lower voter participation. This disillusionment weakens the democratic process and erodes public support for democratic governance.

The lack of independence in the judiciary has further exacerbated this situation. When the legal system is not allowed to operate free from political influence, citizens lose confidence in it. Corruption, bias and the absence of fair justice create a culture of impunity, where political interests subvert the rule of law and undermine justice for all.

Conclusion

The separation of powers is essential in maintaining a healthy and functioning democracy. It ensures that power is not concentrated in the hands of one branch of government and that each branch can check the excesses of the others. Nepal’s post-republic era has been marked by several violations of this principle, leading to political instability, diminished trust in democratic institutions and public disillusionment with governance.

To restore the integrity of Nepal’s democracy, it is crucial to uphold the separation of powers and strengthen the independence of each branch of the state. Without this, the nation risks further undermining its democratic progress and succumbing to authoritarian tendencies. Only through respect for the separation of powers can Nepal ensure a more accountable, transparent and vibrant democracy for future generations.