NATIONAL 2 (Spotlight Weekly)]

Fresh Controversy

The apex court's decision on the constituency fund allocated to members of parliament triggers a new dispute between the two branches of the state

By KESHAB POUDEL

If the Supreme Court's decisions are influenced by populism, the possibility of justices being dragged into controversy can only grow. A decision should be based on the merits of the case and should be made within the purview of the law. In the last few years, however, some of the apex court's key decisions seem to have been guided more by populism than by legal conviction.

The judiciary appears to have been influenced by trial by the media than by legal prosecution. If newspaper headlines and populist slogans become the basis of justice, the very essence of fairness and impartiality that underpins an independent judiciary would wither away.

In its recent decision on the legality of the expenditure of the constituency development fund, the court issued an order to the government not to allow money to be spent on the basis of the expenditure manual. A three-member bench comprising justices Laxman Aryal, Kedar Nath Upadhyaya and Krishna Kumar Verma issued a directive calling for money to be spent under an act.

Although the court is yet to come out with its full judgement, the justices in their short order directed the government to draw up a law before disbursing the money in order to regularize the fund in the future.

Each member of the House of Representatives and the National Assembly is allowed to spend Rs1 million under Constituencies Development Program. The court questioned the validity of the manual governing the fund. MPs were angered by the court's decision. The day after the ruling, UML MPs even called for the impeachment of the justices who delivered the verdict, on grounds of inefficiency.

According to the UML MPs, the court's decision is faulty in declaring the manual illegal. They say money allocated through the national budget cannot be declared as illegal. "If judges and justices can draw money from the annual budget because the budget is itself an act passed by the parliament, how can money allocated through the Constituencies Development Program be declared illegal?" asked MP Lalbabu Pandit, addressing the House of Representatives. "If justices cannot understand the legal value of an act, what is the justification of putting them in the court?"

The spontaneous anger of the MPs is understandable, as they enjoy special privileges under the program to spend money on projects in their constituency. But the petitioner maintained that the fund was inherently illegal. "To give money to the MPs is completely illegal and is against the spirit of the Local Bodies Act and Financial Administration Regulations," said advocate Bal Ram K.C. who pleaded on behalf of petitioner.

There was growing criticism that the fund was grossly misused by the MPs. "The court's decision will also help discourage corruption committed by MPs under this program," said K.C. "Despite the opposition [from the lawmakers], this is the right decision taken in the right time."

Others don't see merit in the argument advanced by the petitioner. "It is not the duty of the court to see whether money is being used rightly or not. The Commission of Investigation of Abuse of Authority exists to look into allegations of misuse of public funds," said a political analyst.

The timing of the decision was hardly propitious for the court, as a large number of MPs, particularly those belonging to the main opposition CPN-UML, are pressing the need to bring the justices and judges under the scrutiny of the police organization. After this ruling, the number of MPs wanting to bring the judiciary into that net can be expected to rise.

"We must introduce an act in parliament to bring justices and judges under the purview of the CIAA," said UML MP Pandit. Although all opposition MPs, and some from the ruling Nepali Congress, are infuriated by the court decision, they seem to be asking junior MPs to step up the pressure.

Responding to a public interest litigation petition filed by an individual, the court issued a directive, not any kind of decision. "Like the court, which is so much influenced by populist headlines, MPs, too, have started to criticize the judgment without reading the full content," said a lawyer. "This bankruptcy of knowledge on the part of our MPs is very unfortunate."

The controversy is also related to the stand of the apex court on the question of locus standi. The court has often intervened in all kinds of petitions filed by unconcerned or unaffected individuals. In some cases, the court has been found to interpret the question of locus standi very liberally, while in others it has been stricter. For instance, the court dismissed a petition against the decision to grant licence to the private sector to operate mobile phones, citing that the Employee Association of Nepal Telecommunication Corporation did not have locus standi. How the court accepted the locus standi of an individual with no relation with parliament in this case is being avidly questioned.

In issues related to parliament and other public matters, the court has entertained petitions from individuals who were not even remotely related or concerned with the issue in question. Because of the court's liberal attitude, public interest litigation is often misused to gain publicity. Very often, the liberal interpretations of the court have encouraged some people to file such petitions.

Such intervention that is prone to be controversial on account of its very nature sometimes might lead to conflict between top branches of the government or the principal departments of the states, which should be wisely avoided.

"In exercise of its enormous power, the court should not be called upon to undertake governmental duties or functions, said A.S. Anand, Chief Justice of the Indian Supreme Court, in an article on public litigation. "The courts cannot run the government nor permit the administration to indulge in abuse or non-use of power and get away with it. It is necessary and essential for the courts to ensure that public interest litigation, which is taken recourse to for reaching justice to those who are for a variety of reasons unable to approach, the court to protect their fundamental rights should develop on a consistent and firm path. The court must be careful to see that by there over zealousness they do not cause any uncertainty or confusion. The exercise of this jurisdiction has often been described by critics of judiciary as judicial activism."

According to Article 88.2 of the Constitution of the Kingdom of Nepal 1990, the Supreme Court shall, for the enforcement of the fundamental rights conferred by the constitution, for the enforcement of any other legal rights for which no other remedy has been though provided or for which the remedy even though provided appears to be inadequate or ineffective, or for the settlement of any constitutional or legal question involved in any dispute or public interest or concern, have the extraordinary power to issue necessary and appropriate orders to enforce such rights or settle the dispute. For these purposes, the Supreme Court may, with a view of imparting full justice and providing the appropriate remedy, issues appropriate orders and writs including these habeas corpus, mandamus, certiorari, prohibition and quo warrant.

MPs have been spending money from the fund on the basis of financial manual. The apex court wants it to be replaced by either government regulations or parliamentary act. The justices seem to have no problem with the allocation of funds. They want to ensure that expenditure should be based on some formal rules.

In Nepal, it is time for the apex court to refrain from or be careful to avoid the direct conflict and confrontation with parliament or the executive over matters in their jurisdiction. Opposition parties say the judiciary, by issuing directives to the administration, is usurping the functions of the legislature and the executive and is attempting to run the country. Finding a delicate balance between ensuring justice in society and maintaining institutional legitimacy is a continuing challenge for the judiciary.

A decision should have a jurisprudential base with clearly discernible principles. Courts have to be careful to see that they do not overstep their limits because to them is assigned the sacred duty of guarding the constitution. We must, however, remember that while exercising jurisdiction in public interest litigation cases, courts do not forsake their duty and role as a court of law dispensing justice in accordance with law.

It is only where there has been a failure on the part of any authority in acting according to law or in non-action or acting in violation of the law that the court needs to step in. In cases where the executive refuses to carry out the legislative will or ignores or thwarts it, it is surely legitimate for courts to step in and ensure compliance with the legislative mandate.

For their part, MPs and the executive should avoid any action that could infringe upon the independence of the judiciary. Lawmakers should work toward making their expenditure more transparent rather than going for an all-out conflict with the judicial branch.