Should we codify the royal prerogative? recent controversy about the unlawful attempt to prorogue parliament and the judicial review that followed has given rise to renewed calls for the codification of the royal prerogative or the enactment of a written constitution. Anne Twomey argues that there are benefits to a looser prerogative power, and that experience in other countries has shown that codification should be undertaken with caution.

The recent controversy about the prorogation of parliament and the judicial review of its exercise in Miller No 2 (also known as Cherry/Miller) has again given rise to calls for the codification of the prerogative or the enactment of a written constitution.

A written constitution is not necessarily an antidote for ambiguity or interpretative discretion. The same issues that arose in Miller No 2 could also arise under a written constitution. For example, section 5 of the Australian Constitution confers upon the Governor-General of Australia the power to prorogue the federal parliament. In doing so, however, it does not delineate the scope of the power to prorogue and whether there are any internal limits on it. The term ‘prorogue’ would have to be interpreted in its historical context, as a prerogative power, and in a manner that is consistent with the principles that are derived from the constitution, including the principles of responsible and representative government

So what would happen if an Australian government requested the Governor-General to prorogue parliament for a significant period, in circumstances where it appeared to have lost confidence and to be seeking to frustrate the ability of parliament to fulfil is legislative and accountability functions? It is likely that Australian courts would face exactly the same issues as the UK Supreme Court did in Miller No 2, regarding justiciability, the scope of the power to prorogue and the application of fundamental constitutional principles. Simply setting out the existing power in legislation or a written constitution does not, of itself, resolve all questions as to its application.

While most prerogative powers have now been abrogated by legislation, there is usually a good reason while those that have survived as prerogative do so. It may be because of the need to exercise them in a quick and decisive fashion. Sometimes, codifying prerogatives in legislation, particularly where prescriptive conditions are included, can exacerbate problems about their use. Disputes are likely to arise about the interpretation of the application of the conditions, courts are likely to become involved in enforcing them, and the delay involved in litigation is likely to exacerbate any political crisis. Continue reading

Projecting Nepal’s future constitutional stability


A new constitution was agreed in Nepal this September, but will the document bring concord to the often unsettled nation? Arguing that constitutional stability is critical for long-term development, Daniel Goldstein examines Nepal’s mechanisms for constitutional change and projects the nation’s constitutional stability over the next 20 years.   

Despite the end of a ten year civil war and total rejection of the monarchy in late 2006, Nepal has remained a politically turbulent country.  Although an interim constitution passed in 2007, the process of agreeing a finalised constitution was delayed by political bickering.  Shortly after conclusion of the civil war, the one-time military foes of the government, the Maoist, entered the legislature as a political party.  Gaining significant support, the Maoist clashed with the traditional political parties over the constitution.  Though there have been several amendments to the interim constitution, most progress toward a new document occurred in the months preceding the September 2015 enactment of the new constitution.  The suddenly expedited process has been partially attributed to national solidarity following the April 25 2015 earthquake, which killed over 8,500 people.

Divisions along ethnic, language, and caste lines pervade Nepal, factors that substantially influenced passage of the new constitution, which creates a federal system dividing the country into seven states.  The Maoist campaigned strongly for the federal constitution which aimed to provide rights to discriminated minorities. However, concerns that the new constitution does not go far enough to protect the rights of minorities, as well as objections to the drawing of state borders, have led to continued upheaval since the September enactment.  Protests have been especially prevalent in the region of Terai, bordering India, where residents feel that the new constitution will allow for continued discrimination against those of mixed Indian and Nepalese backgrounds and against women.  The constitution grants Nepalese citizenship to children of Nepalese men who marry immigrants, but this privilege is not extended to Nepalese women unless their immigrant husband first becomes a Nepalese citizen. There is additional worry that the constitution was hurriedly sanctioned by the predominant political parties, which are led primarily by males of high castes, and that the present dissatisfaction with the constitution could lead to a renewal of violence.

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The saga of Nepal’s embattled constitutional politics continues


As the deadline for drafting Nepal’s constitution looms, it seems unlikely the Constituent Assembly will be able to deliver on time. The question of federal restructuring has been a particular roadblock, but the opaque nature of negotiations and the exclusion of minority interests have also inhibited compromise, writes Mara Malagodi.

Almost a year has passed since Nepal’s second Constituent Assembly (CA2) was elected in November 2013. Regrettably, no significant progress has been made so far on constitution drafting by the new legislature/Constituent Assembly. As a result, the peace process that put an end to a decade of civil war in 2006 remains to this day incomplete, and the country’s political situation deeply unstable.

In March 2014 the CA2 finally succeeded in adopting the many agreements reached by the first Constituent Assembly (CA1). However, the thorny issues that caused the CA1 to be dissolved without a new constitution after four years of deliberations and four extensions (2008-2012) remain embattled and divisive.

The questions of federal restructuring and form of government have polarised Nepal’s political spectrum. On the one hand, the Nepali Congress, the UML (or Communist Party), and other smaller conservative and left-wing parties advocate for territorial restructuring along the lines of devolution, and to retain a parliamentary form of government. On the other, the Maoists, alongside Madhesi and Janajati parties, promote federal restructuring along ethnic lines to secure the inclusion of the many marginalised groups, and a presidential system in which the President is elected by popular vote. The Nepali Congress and UML currently dominate the CA2, making the former institutional roadmap the most likely outcome. However, a qualified two-third majority of CA members is required to pass the new constitution. The two dominant parties are short of a handful of votes, which forces a degree of compromise. Negotiations therefore remain ongoing.

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