February 17, 2006

Following the verdict to declare the dissolution of the Royal Commission of Corruption (RCC), lawyers, members of civil society and politicians - who had condemned judges for their actions few weeks ago to the extent to boycotting them in public functions - are now expressing their solid solidarity with the Supreme Court. In its five decades long history of evolution, Nepal ’s judiciary, which is yet to take bold steps in many writs filed by common citizens other than political cases, has witnessed many ups and downs. Sometimes its decision triggers a drastic change while, at other times, its decision reverses the situation, particularly in response to petition related to the political decision. As a constitutional body evolved as a proud product of democratic innovation, challenges of apex court, which is itself in the process of institutional building, is to establish itself as an institution protecting and guaranteeing individual rights in all cases

By KESHAB POUDEL

As soon as the Supreme Court (SC) delivered its verdict terming the formation of Royal Commission of Corruption Control (RCCC) null and void, the apex body - which was condemned as an undemocratic and inefficient body leading to public boycotts of the judges of the court by a section of lawyers – is now being hailed as the protector of constitution and the judges as guarantors of individual rights.

Supreme Court : Custodian of rights

When the court declined to declare ultra vires media ordinance, lawyers, members of civil society and others condemned the judges and their decisions as historic blunder in judicial history.

Portrayed as a despotic regime in the world, the government formed under the chairmanship of King Gyanendra accepted the latest SC verdict releasing from its custody former prime minister Sher Bahadur Deuba and former minister Prakash Man Singh, who even declined to challenge constitutionality of the actions at the time of proceedings in the Supreme Court.

Former prime minister Deuba and his colleague - who had not gone to the court for seeking remedy in the first place and had declared to challenge it on political basis - are immediate beneficiaries of the judgment in spite of the fact that they did not venture to go to the court challenging the constitutionality of probe commission.

Although the court’s verdict termed the very basic claim of King’s actions of February 1 as against the spirit of Constitution, a good sign is that it has been taken in good constitutional spirit by the monarch. In our neighborhood few years ago, the army ruler had dismissed judge of Supreme Court who challenged his authority.

This is not the first time when the country’s political institutions have accepted the verdict of court in good spirit. Whether it was in the first phase of democratic system or dissolved Panchayat system or the present one, the court’s verdict was always respected by all the side contributing towards the process of strengthening the institution of judiciary.

“This is a historic verdict of Supreme Court. The verdict showed that there is no one above the constitution,” said Sambhu Thapa, president of Nepal Bar Association (NBA) reacting to the verdict. “Court has shown courage,” said Thapa, whose recent remarks against the court have created many controversies and uproar. The judge society and full bench of Supreme Court even issued statement condemning the decision of Nepal Bar Association to publicly boycott chief justice.

Equally, there are lawyers who hold the opposite view on decision. “It is unfortunate verdict –which will encourage corruption,” said senior advocate Kunja Bihari Prasad Singh, who hailed Supreme Court verdict on media ordinance.

Five-member bench consisting of Supreme Court justice Kedar Prasad Giri, Min Bahadur Rayamajhi, Ram Nagina Singh, Anup Raj Sharma and Ram Prasad Shrestha declared the formation of RCCC null and void from the beginning and quashed it from the date of decision. King Gyanendra had constituted the RCCC equipping it with the powers of investigation, prosecution and trial in March last year giving continuity to the institution formed under the Emergency power.

The verdict was delivered to a public litigation filed by advocate Santosh Kumar Mahato and ex-minister Rajiv Parajuli, who was under custody of RCCC, by exercising Article 84 of the Constitution of Kingdom of Nepal 1990 demanding to declare the institution null and void. In its verdict, the court said all actions and decisions taken by probe commissions are declared void from the beginning.  The court also says the probe commission could not have been established under Royal decree issued under article 127.

“One of the notable things of this verdict is how in a democratic constitution an ordinary and humblest of the citizens could challenge the highest of state authority and bring before court of law and get the verdict against the powerful authority. This is the purity of democracy and supremacy of the constitution,” said former attorney general Badri Bahadur Karki, who also pleaded the case arguing the formation of the RCC was unconstitutional. “The achievement of this verdict is that one does not need to rebel and kill or resort to violence but to exercise the peaceful judicial means to restore the democratic process. A written writ filed in the court achieved what seven parties and Maoists could not achieve through their violent means.”

Evolution of Supreme Court

Political demonstration : Demanding rights

Since its establishment five decades ago as a guardian of the rights of the people following the revolution of 1951, Supreme Court of Nepal has seen many ups and downs including endorsements and rejections in exercising extra ordinary powers in the nature of various writs.

Despite so many lacunas and weaknesses, the Supreme Court has established as an institution guaranteeing the right of the people. Whether to give remedy to a person holding a gun to overthrow the present constitution or leaders of political parties and members of civil society, who have been launching peaceful agitation to the extent of demanding new constitution, all of them are knocking the door of Supreme Court whenever they want relief from arbitrary state power.

Although the decisions of the court are not free from controversies, the judiciary is slowly and gradually evolving as an institution of innovation of democratic product.

Despite its failing to protect the rights of citizens in many other ordinary writs and petitions, it has settled many constitutionally important cases - when the challenge demanded, the Supreme Court has risen to its call of duty. “Therefore what is required is that it should maintain its majesty all through so that the faith of the common man on its competency is always preserved,” said advocate Karki.

What are there in the Judgment?

The judges clarified that the King can exercise his sovereign power and state authority only under the terms of present constitution, making the constitutional document law of the land.

The court also defined the ambit and scope of article 127. It could only exercise to activate the provisions and institutions under the constitution and not beyond them. King could not exercise it so as to create a new institution in parallel or as a substitute.

“Under article 127, no institution and organization created under the emergency order, probe commission being the one, could be given continuity when emergency order was already withdrawn. The most important thing is that the verdict established supremacy of the constitution over any authority and institution. Any or all actions or decisions including that of the King, if it involves the question of interpretation of the constitution or constitutionality, that will come and fall under the power of judicial review of Supreme Court,” said former attorney Karki.

Under article 27 (3), His Majesty’s power is limited to the area covered and procedure prescribed by the constitution. They don’t extend the periphery or lie outside the scope of constitution. The immunity available under article 31 to His Majesty is limited to the actions and decisions done in his personal capacity not official capacity.

Who is going to take responsibility of all torture and sufferings committed to the people who were fined, jailed and taken into the custody by the unconstitutionally appointed commission?

“As under the existing laws, there is no provision for compensation. His Majesty should sack or distance himself from those advisors who persuaded him to take such unconstitutional steps so as to learn and teach lesson for the future,” said advocate Karki.

Authority of Court

According to article 84 of the constitution, courts and other judicial institutions in accordance with the provisions of this constitution, the laws and the recognized principle of justice shall exercise the powers relating to justice in the Kingdom of Nepal .

Singh and Deuba after released by SC decision : Rights established

A power of judicial review of the legislation has been conferred to it. As in the previous constitution of Constitution of Nepal, the article 1 of the Constitution of Kingdom of Nepal 1990 declares the constitution as the basic law of the country. The article 1(1) of the constitution says the constitution is the fundamental law of Nepal and all laws inconsistent with it shall, to the extent of such inconsistency, be void. The article 1(2) says it shall be the duty of every person to uphold the provision of this constitution.

Article 88 (1) enables any citizen of the country to challenges a law as unreasonable or contrary to the constitution in the Supreme Court. Under this article, any Nepali citizen may file a petition in the supreme court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by the constitution or any other ground and extra-ordinary power shall rest with the Supreme Court to declare that law as void either ab initio or from the date of its decision if it appears that the law in the question is inconsistent with the constitution.

Article 88 (2) allows anyone to file the move directly regarding a case of public interest litigation if it involves any question relating to interpretation of law or the constitution. The present verdict against the RCC is given under this article.

As the court enjoys enormous power and political forces, at present, are in confrontational course, the Supreme Court is in the most difficult trial of its history in performing the role of justice. Following the verdict of the court, political forces in Nepal have to show the absolute faith over the constitution of Kingdom of Nepal 1990 – which gives level playing field to all political forces.

In its just five decade long history, Nepal ’s apex court has made several verdicts and all verdicts sparked one or other controversies. Whatever the consequences were, what judiciary has been gradually establishing is a body to protect the rights.

In many petitions and writs filed by common people against the arbitrary use of authority by state in business and other dealings, the court, however, has been adamant to issue verdict under the article 88.2. It evolves slowly and gradually and it will take centuries to get the maturity.

Increases in the list of the rights of the people would be irrelevant if one does not have the remedy for that. One can add any numbers of fundamental rights in the constitution - that is not going to guarantee the quality of the rule of law, if there is no remedy for that. Like article 71 of the previous constitution, article 88 (2) of the present constitution has been reformulated providing remedy for all these rights, which have no other remedies.

“This enhances the prestige of Supreme Court and people have to trust the court,” said senior advocates Sarbagya Ratna Tuladhar. “ Not only the King, all have to follow the spirit of the constitution.”

The concept of writ jurisdiction, which has been evolved in the common law system of Britain, has been successfully experimented under the provisions of the constitution of Nepal. All those power of the writ jurisdiction have been left to be defined by the judiciary itself. The law has not defined or prescribed the limit of that extraordinary jurisdiction. That power is solely with the Supreme Court - that is such a great thing of the constitution, which has assured the common people, that they would go for redress to the Supreme Court if all other avenues are closed. That is the single most important provisions of the constitution - which relates the constitution with common people. If that power of Supreme Court is removed the common people have no means for the exercise and enjoyment of constitution.

One wonders whether the judges and lawyers of land know its implication in full term. Persons who are talking of another constitution or constitution made by Constituent Assembly seem to be completely ignorant what a main provision is already there in function even at this critical moment.

When there is no elected government even the government of the present arrangement and other agencies of the state are accountable to the supreme court whenever the question of infringement of the rights of the people comes to the notice of supreme court.

This power of the Supreme Court is more effectual and useful to the people compared to hundreds of other articles that are there.

The evolution of judiciary in Nepal has been in different circumstances than the Common Law or the continual legal systems. Along with other organs of the state, judiciary in Nepal is in a rapid transformation from traditional stage to modernity. After 1951 revolution, for the first time in the history of Nepal, people were promised to have an independent judiciary as a guardian of the rights of the people. The rule of law was declared as one of the basic objectives of the state. Under the new constitution, the court was given extraordinary powers in the nature of various writs.

Interestingly, for the first time in its history, actions of the government could be challenged in the courts. The role of the judiciary was established as an arbiter not only between individuals but also between individuals and the state. Despite minimum of numbers of laws and lack of institutional and professional support, judiciary in early 1951 under the leadership of chief justice Hari Prasad Sharma took many landmarks decisions. Such decisions intensified the conflict between the state and judiciary. In the case of B.K. Shrestha, a full bench presided by chief justice Pradhan declared the Supreme Court as the guardian of the constitution and the King under the law. The government reacted very strongly against the activist trend set by the Supreme Court then.

An apex body in the judiciary, the Supreme Court has much powers in the present constitution compared to previous any constitution The Supreme Court, under the present constitution, has power of judicial review to the extent of declaring a law void if it is found unreasonable or contrary to the provision of the constitution. As the independence of the judiciary is one of the basic features of the Constitution, any law in contravention to that, shall be void. The time has come for all political forces to declare that the present constitution has provisions to safeguard their rights.

As long as this single most important institution is functioning, most of the basic human rights of the people in Nepal have a guarantor and protector. The time has now come to show full commitment towards the constitution as it shows there are constitutional means available to restore the constitutional process.