Wednesday, November 8, 2006

National

-Professor (Dr.) Bharat B. Karki

1. Objectives of the paper

Nepal has faced severe armed conflict perpetrated by CPN (Maoist) since over a decade. Maoist insurgency has claimed an estimated 13,000 lives and rendered thousands of people homeless and handicapped since 1996, and caused enormous social and economic damage. The insurgency of Nepalese Maoist is now being counted in line with the World's largest insurgencies of Cambodia , El Salvador and other African countries. Large-scale areal bombarding at the civilian targets and Maoist mass meetings, arbitrary killings; detention; routine torture and disappearances; rape and loot carried out by the state security forces (unified command) to retaliate and suppress the uncontrolled Maoist rebellion on the one hand; and mass killing by surprise attacks; explosions; abductions; killing by mine blasts and bobby traps; and human shields; arbitrary death sentences to innocents; confiscations of civilian's houses, chattels and lands; and threat to civilians by the Maoist on the other, ware the regular war features particularly during the imposition of Terrorist and Disruptive Ordinance (TADO) and emergency rule. After the temporary ceasefire situations except bombarding and extortion all other activities are perpetrated by both the forces including Maoists extracting forced contributions from the public.

During and after a decade of incessant armed conflict between the Maoist forces and the State's armed forces, the country has faced great holocaust and instability in political, economic and socio-cultural sectors. As a result of which Royalists' and Maoists' antagony and attack a decade-old restored multiparty-democracy doomed, economy collapsed, social insecurity remained at its height, government lost credibility among the people and remained isolated in the capital and at the district headquarters as the Maoist control remained well within all the rural areas of the country.

Assassination of King Birendra along his whole of his family, repeated imposition of TADO and emergency rules, dissolution of Parliament and the elected government and imposition of Article 127 of the Constitution as removing difficulties followed by imposing King Gyanendra's autocratic direct rule, heading a cabinet government under his chairmanship on February1, 2005 with a grand design to return the almost failed state to the anarchic monarchial absolutism on his father Mahendra's line was the sad story the country and the people had to face at the cost of the ideals of liberty and democracy. Extreme suffering of the people, and gross human rights abuse by the Maoist and government invited UN monitoring office to stay in Nepal under agenda item 19 of UN Human Rights Commission's Session. In the meantime, the 12 point accord signed between CPN (Maoist) and seven political parties on November 22, 2005 agreeing to overthrow the King's autocracy and establishing people's democracy through peaceful people's movement remained decisive towards conflict resolution. Nepalese supreme Courts' historical verdict (vide February 13, 2006 writ order) scrapping the illegal Royal Commission for Corruption Control(RCCC) as the King's one-year old illegitimate brain child became very momentous to excellarte the 19-day long people's national democratic movement led by Seven political parties and widely supported by the Maoists. Killing and suppression of the people, gross abuse of human rights and state authority and rampant indulgence in corruption by Royal officials during the last four years of political instability and the last over one year old absolute monarchy was lastly culminated into a historical mass uprising of the people in April 2006 which overthrew the King's absolutism and paved the way for the establishment of people's inclusive democracy land restructuring the state into a modern secular state. To reflect the popular demands and expectations, the restored House of Representatives by the King's last proclamation of April 24, 2006 (through time expired) made a unanimous historical Declaration on May 18, 2006 proclaiming measures in transition until a new constitution comes into force as to be framed by an elected constituent assembly that this House would be a sovereign institution, certain provisions of the constitution conflicting with this Declaration be invalid, cancellation of special privileges of the King, imposing taxability on the King's personal property, individual and collective responsibility of the constitutional authorities towards the House of Representative and taking oath of office by public officials on the form and manner prescribed by the House, and failure of which would loose his office. Hence, the net intent of the Declaration is to promise to transform and direct the state towards an egalitarian, open and transparent and a corruption-free welfare state and to sort a break-through in good governance of the State.

An interim government formed of seven agitating political parties under the prime-ministership of the Congress suprimo and ailing octogenarian Girija Prasad Koirala for the transitional period until replaced by an elected government constituted under a new constitution formed by the Constituent Assembly has been mandated with major tasks and challenges. One of such tasks is to negotiate peace process with the Maoists. Accordingly cease fire between the Maoist and the government was acquired followed by a 25-point code of conduct on the ceasefire was signed between them on May 25, 2006 which too was reinforced by another 8 points agreement on June 16, 2006 committing towards obtaining permanent peace by renouncing the people's war and joining the mainstream multiparty-democracy on the part of Maoist and including the Maoist into an inclusive democracy by restructuring the State under a new constitution given by the Constituent Assembly on the part of the government . High-level dialogue committees were formed by both the parties and two rounds of talks were held between them. Separate Dialogue monitoring committee has also been formed. The Interim Constitution Drafting Committee representing seven political parties and Maoist formed under controversy finally submitted an incomplete and controversial draft constitution to the Dialogue Committees. Despite these positive peace preparations, process of conflict resolution is delayed as crisis of confidence between the parties have emerged due to their political stances. U.N.O. has been accepted as to play the role of a peace mediator and a helping hand to arms management of Maoist forces. Difficulties and delays in arms management has widened the prospects of inclusion of CPN (Maoist) in the interim government, violations of the cease fire code of conduct by both the sides has really dead-locked the process of conflict resolution.

There is a national and international concern that permanent peace be achieved in Nepal by resolving Maoist insurgency. In its absence, the Preliminary stage of conflict management has not been able to give solace and security relief to the people and the common civilians are still facing the atrocities perpetrated by both sides. Existing Nepal government is weak and facing financial crunch as the King's regression had drained out what little the poor conflict-ridden country had within it. As the cost/ impact of conflict is pervasive, severe, wide-spread and multi-pronged. Unfulfilled basic needs and demands of the poverty-ridden and conflict-stricken growing mass of people and the doomed economic industry have deepened the crisis in the badly imparted socio-economic sector. Although some of the impacts of the conflict could be positive but mostly they are assumed to be negative from the point of view of public policy-making. However the cost or impact on governance as a whole has been dominant. Grave lawlessness, impunity, corruption, hunger, insecurity and injustice have remained the outcries. Absence of Parliament, existence of ruthless executive and almost a royalist judiciary represented an imbalanced state of affairs in the recent past.

As to the main concern of this paper, issues on dispensation justice has been alarming. Nepal 's system of justice dispensation was not operating at its best even during normal times. But the conflict did force the system to adopt some ways of crisis management during the conflict situation. Some of the quasi-judicial authority had to be handed over to the administration and even the security agencies. That becomes an especially relevant issue because of parallel courts run by the rebels. The government itself was planning to shed the overburdened courts off many minor local disputes to the civil society and local community. What was the result in judicial policymaking, of the rise of the parallel rebel courts and the need to delegate minor justice dispensation to local community and civil society? How did the judges cope with the pressure from the rebel camp in dispensing their duty? What does it mean for the independence of judiciary? These and similar questions have been haunting those interested in the realm of policymaking. Hence, these limit this paper.

2. Ideals, Standards of Justice and the Judiciary

Justice is the primary objective of modern government (notes the Federalist). It has two basic concerns, i.e. to insure that all persons are put in a position to get what they are entitled to under the law and also to ensure that no one is punished unless he has infringed the law. The world "the law" must not be taken to mean merely the enactments of legislative authorities, rather it encompasses standards of fairness, reasonableness and the like to which the judge must endorse and dispense (Carl Fredrich 1966). "Justice is fairness" John Rawls opines, " Justice is the first virtue of social institutes, truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability forwarded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a great good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many. Therefore, taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests. The only thing that permits us to acquire an enormous theory is the lack of a better one; analogously, an injustice is tolerable only when it is necessary to avoid an even greater injustice. Being first virtues of human activities, truth and justice are uncompromising" (John Rawls, 1972).

Hence, maintenance of justice is closely related to the task of maintaining internal peace and public order. Unless people could be reasonably certain of securing their rights through a process of adjudication, violence would often flare up. Judiciary is therefore the universally recognized permanent state institution to dispense justice through the process of adjudication. By Judiciary we always mean an independent and impartial judiciary competent to deliver a course justice in a legal conflict situation.

The 'Basic Principles on the Independence of the Judiciary' adopted by the United Nations in 1985 are very important human rights, fundamental freedoms, democratic norms and values and constitutionalism as the corner-stones of modern justice system, which can never be over, looked by any court while discharging its judicial function.

The core of the basic principles are:

"- Whereas in the Charter of the UN the people of the world affirm, interalia, their determination to establish conditions under which justice can be maintained to achieve international cooperation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination.

- Whereas the Universal Declaration of Human Rights enshrines in particular the principles of equality before law, of the presumption of innocence and of the right to fair and public hearing by a competent, independent and impartial tribunal established by law.

- Whereas the International Convents on Economic, Social and Cultural rights and on Civil and Political rights both guarantee the exercise of those rights, and the right to be tried without undue delay.

- Whereas the organization and administration of Justice in every country should be inspired by these principles, and efforts should be undertaken to translate them fully into reality.

- Whereas rules concerning the exercise of judicial office should aim at enabling judges to act in accordance with those principles.

- Whereas judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens.

- Whereas it is, therefore, appropriate that consideration be first given to the role of judges in relation to the system of Justice (independence) and to the importance of their selection, training and conduct.

- The basic principles formulated to assist member states in their task of securing and promoting the independence of the judiciary should be taken into account and respected by governments within the framework of their national legislation and practice and be brought to attention of judges, lawyers, members of the executive and the legislature and the public in general."

The travails of justice dispensation which reached to this modern rationality, has agreed its universality, identity autonomy, integrity and decency in principle framework. But the practical framework is far from being accessible to the common man. Though it ought not to be conceived as "distributive" in egalitarian terms, but rather only "legal justice" pronounced by state courts of the divided world of 'haves' and 'haves not' untrammeled by the ethos of "sovereign equality", "peaceful co-existence", "universal fraternity" and "inter-dependence". The extremism of imperialism, capitalism, communism and fundamentalism giving birth to rebellion or state-terrorism is the great stumbling bloc in the way to objective justice. The existence of International Criminal Court could be one of the examples to address some of the issues of such extremism and also of some local offences attributed to be international offence. Although the reach and concern of justice is boarder-less, unlimited and humane, but the existing rules of 'sovereignty of State' and 'territorial jurisdiction' have reaffirmed and reconfirmed the normative stance that justice dispensation is basically judicial.

Nepal being a democratic state and also one of the members of U.N. system is obliged to realize the basic ideals of justice and establish itself as a justice provider welfare state. For the first time on June 25, 1940 vide a royal order a separate judiciary was established by separating from the executive. But particularly since the democratic change of 1951, Nepal proceeded towards adopting the principles of separation of powers and checks and balances in State governance. But the predominant monarchial sovereignty had hardly welcomed the idea of an independent judiciary, barring some individual adventurism of some chief Justice and judges naming particularly Hari Prasad Pradhan of Pradhan Nyayalaya Period, and the positivist roles of some judges addressing the fundamental rights issues. During the 30 years of Panchayat autocracy staged by overthrowing the democratic government in 1960, the Nepalese Judiciary remained subservient to Monarchial absolutism, feudalism and relegated to a beurocratic institution dominated by the executive administration. As a policy, it hardly favored pro-democracy movement before 1990, as the judges chose to become the benevolent employees of the inactive State.

The restoration of multi-party democracy by the People's movement of 1990 heralded an era to start with the so-called Judicial Supremacy. The existing Constitution of the Kingdom of Nepal 1990 which its drafters claimed it as the best of the modern liberal democratic constitutions of the world framed that date kept judiciary in an important and independent position. The Constitution of 1990 which for the first time in history declared 'People's Sovereignty' and 'popular will' as the authority of state governance to render Nepalese people social, political and economic justice long into the future. The preamble of the Constitution of 1990 aimed to guarantee basic human rights to every citizen of Nepal; and also to consolidate the adult franchise, the parliamentary system of government, constitutional monarchy and the system of multi-party democracy by promoting amongst the people of Nepal the spirit of fraternity and the bond of unity on the basis of liberty and equality; and also to establish an independent and competent system of justice with a view to transforming the concept of the Rule of Law into a living reality. In order to institutionalize democracy and make political and legal transformation towards it, the Constitution (vide proviso to Article 131) provided that laws inconsistent with this Constitution shall, to the extent of inconsistency, ispo facto cease to operate one year after the commencement of this Constitution". As laws are considered tools of democracy and instruments of political system and change, there was very slow motion of repealing or amending the constitutionally inconsistent preexisting laws and bringing new legislation to enforce essentially the constitutional provisions.

The prevailing 1990 Constitution conferred the courts and other judicial institutions powers related to justice to be exercisable pursuant to the Constitution, laws and the recognized principles of justice (Article 84). In addition to the three tier courts i.e. the Supreme Court; Appellate Courts and District Courts, special types of courts and tribunals ( 1 Special Court, 4 Revenue Tribunals, 1 Labor Court, 1 Administrative Court, 1 Debt Recovery Tribunal and 1 Debt Recovery Appellate Tribunal) are established for the hearing of special types of cases. But no special court or Tribunal court could be established for hearing a particular case. (Article 85). The Supreme Court as an apex court may inspect, supervise and give directives to its subordinate courts (Appeal courts, District courts, Special courts) and other judicial tribunals other than the Military Court . The Supreme Court as a court of record may initiate proceedings and impose punishment in accordance with law for contempt of itself and of its subordinate courts or judicial institutions. (Article 86). The chief justice of the Supreme court on the recommendation of the Constitutional Council and all other 14 judges and ad hoe judges of the Supreme Court, and all judges of Appellate Courts and District Courts are upon the recommendation of the Judicial Council are appointed by the King. Special provisions have been laid down for the appointment, qualification and conditions of service of all judges in order to confer them special status and maintain their independence and integrity. On the same grounds judges are not to be transferred or engaged in any other assignment. The chief justice or any other judge of the supreme court can be removed from his office if, for reasons of incompetence, misbehavior or failure to discharge the duties in good faith by passing impeachment motion, whereas on the grounds a judge of the Appellate or District Courts can be removed from his office on the recommendation of the Judicial Council. Besides the marginal and appellate ordinary jurisdiction and revesionary (Article 88(4)) and advisory jurisdiction (Article 88(5)), the Supreme Court is bestowed with the power of judicial review of legislation and administrative actions (Article 88(1)) and writ and PIL jurisdiction (Article 88(2)). It is the constitutional duty of the government officials and officers to extend cooperation to the courts in carrying out the functions of dispensation of justice (Article 95). Orders and decisions of the courts are binding on all individuals and institutions and the rule of stare decisi or precedent of the Supreme Court are also be equally binding as force of law to all the courts, government offices and the people.

In pursuance to Justice Administration Act, 1991 the Appellate courts are also empowered to issue writ of habeas corpus, mandamus and injunction to enforce the Citizens Rights Act, 1956, besides its normal original jurisdiction as an extension of Supreme Court's, writ jurisdiction to protect the fundamental rights of the people. The Supreme Court has initiated Court Referred Mediation under the strengthening of Judiciary Programme in order to resolve legal conflicts by Community/ participatory approach.

Structurally at the minimum the Nepalese Judiciary stands at par with the contemporary judiciaries of the world, although functionally it may have misgivings caused internally or by incessant conflict.

Text courtesy: Excerpts from the author's paper presented at a NEFAS Seminar held recently in Kathmandu-ed.