Cover Story (Spotlight Weekly)

JUDICIARY
Guarding The Liberty

After the promulgation of the Constitution of the Kingdom of Nepal 1990, this is the second consecutive year when the country is without a popularly elected House of Representatives. Since the dissolution of the House of Representatives, the executive has remained without representing the popular base. As such, judiciary is the only institution left to protect the arbitrary exercise of authority by the executive and other constitutional bodies like the Commission of Investigation of Abuse of Authority (CIAA), an anti-corruption watchdog, which enjoys sweeping authority. Nepal's judiciary - which has passed through various critical phases in its five decade long evolutionary process defending the freedom and liberty of individuals and forcing other state agencies to follow the rule of law - has once again been entrusted with maintaining the same at a crucial time of history. Will it fulfill its tradition and uphold jurisprudence by checking executive excesses remains to be seen

By KESHAB POUDEL

“The judicial administrators should not favor particular individuals since the law does not recognize relatives or temptations. While imparting the judicial duties, seeking outside favor is heinous crime for judicial administrator as well as justice seekers. Both judicial administrators and justice seekers should understand this.” Thus said late King Mahendra, father of King Gyanendra, while inaugurating the present building complex of Supreme Court in 1964. (See box)

Supreme Court : Heightended role and responsibility

Although late King Mahendra issued the statement during his direct rule in the nation and following the dismissal of democratically elected government led by B.P. Koirala, he seemed to be concerned on how to deliver impartial justice.

Thirty-nine years after his statement and thirteen years after the promulgation of the Constitution of the Kingdom of Nepal 1990 - which recognizes people as the source of sovereignty and guarantees the independence of judiciary - the common people are worried whether they can secure any protection from the court?

How the judiciary will deliver the justice under the rule of his second son King Gyanendra remains to be seen. But, people still see the Supreme Court as the last resort to seek justice against the state's atrocities and high-handedness. Whether people who are waging armed struggle against the state or those arrested by an anti-corruption constitutional body, all look upon the judiciary particularly Apex Court for justice.
This is the reason why pressure is mounting on judiciary and a large number of people are knocking the door of the Supreme Court challenging the arbitrary exercise of law and flouting of the legal procedures.

According to the Annual Report of Supreme Court 2002, the highest court of the country, it has received 107 writs on habeas corpus, 252 mandamus, 45 prohibitions, 3 quo warranto and 3410 certiorari during the period of 2002. The apex court received 3817 cases under the article 88.2 of Constitution of Kingdom of Nepal 1990.

The annual report shows that the court apex court has received 24,216 different writs whereas it has settled only 7542 or 31.14 percent of them. The Appellate Courts have registered 28,335 cases and writs and have settled 17,007 or 60.02 percent. District Courts, the lowest levels of court, have registered 79,665 cases and have settled 48,590 or 60.99 percent of them. In total, the courts have registered 132,216 writs and cases in the year 2002. The largest number of writs and cases are related to land disputes – a total of 38,431.

"Common citizens still have strong faith on the Supreme Court. People file writs against any kind of arbitrary decision of executive hoping that they will secure justice from apex court," said Mukunda Regmi, senior advocate and one of the framers of the Constitution of the Kingdom of Nepal 1990. "The judiciary has enormous authority to check the arbitrary exercise of power by the government."

At a time when the country is without elected House of Representatives and government is not directly accountable to the people, the judiciary is the only institutions left to protect the fundamental rights of citizen. If judges are serious and courageous, the apex court can force the executive to follow the rule of law and act in accordance with the constitutional and legal framework of the country.

One of the essences of democratic system is upholding the spirit of rule of law and treating the citizens in accordance with the law. The executive branches and constitutional bodies must show adequate legal reasons before putting someone behind the bar and it must keep in mind the old adage that states “let hundred criminals be acquitted in absence of conclusive evidence but let not even a single person be convicted on the basis of doubtful evidence”.

"In normal situation when the legislative and executive are functioning properly, the judiciary, too, follows its own course. In absence of executive and legislature, the judiciary has to function as an emergency light to protect the fundamental rights and freedom of individual," said advocate and eminent human rights activist Bishwokanta Mainali. "Like in the past, our judiciary will fulfill the responsibility that has fallen in its shoulders."

Whether in the normal or abnormal situations, people see the judiciary as place of last refuge for justice. "The protection of human rights - the rights of every individual and every minority group - cannot be left only in the hands of the legislature and the executive, which, by their nature, reflect majority opinion. Consequently, the question of the judicial branch's role in a democracy arises," writes Aharon Barak, president o the Supreme Court of Israel in his article in Harvard Law Review. “The struggle for the rule of law is unceasing. The need to watch over the rule of law exists at all times. Trees that have nurtured for many years may uproot with one stroke of the axe. We must never relax the protection of the rule of law. All of us - all branches of government, all parties and factions, all institutions - must protect our young democracy. This protective role is conferred on the judiciary as a whole, and on the Supreme Court in particular. Once again we, the judges of this generation, are changed with watching over our basic values and protecting them against those who challenge them."

Democratic and open system does easily fall prey of enormous freedom in the functioning of political process since citizens have many constitutional safeguards. In the last 13 years, people enjoyed enormous press freedom under the democratic political system. The traditional Nepalese society, which is yet to prepare itself for full democratic system, encountered numerous challenges including abuse of authority, flouting of rule of law and corruption.

In the name of delivering good governance, flouting the law and violating rule of law seem to be normal process. Thanks to anti-corruption campaign by media, the government has introduced harsh acts to curb the corruption undermining the basic legal tenet that without proper check and balance and legal guarantee, such harsh acts can misuse for political vendetta. Nepalese have bitter experiences of pre 1990 days when then CIAA was politically misuse to destabilize the political process.

Following the unanimous endorsement of new anti-corruption Act 2002 and Commission of Investigation of Abuse of Authority Act 1991(Amendment 2002), the anti-corruption watch dog has been given sweeping power and the situation seems to be repeating again like the pre 1990 days. "Nobody wants to see the corruption and misuse of authority but putting someone in prison without following due course of law will not eradicate the corruption. Arresting half a dozen politicians and some hundred civil servants in a whimsical manner cannot solve the corruption cases. The anti-corruption drive needs to be within the purview of law at all times," said a lawyer.

Former CJ Upadhyaya : Decisive presonality

Democracy is a system based on rule of law and the citizens are given constitutional and legal protections against the state. It is for the judiciary to decide whenever there appear disputes between state and individual. "Rule of law is the very essence of democracy and rule of law is something different from the rule by law. The present cases against Govinda Raj Joshi and other senior officials, which is being investigated by the CIAA, is going to be a test case and it has put our judicial system and highest court on trial. Our constitution has guaranteed right against self incrimination and expost facto
law (that is no one shall be punished for something which was not a crime when it was done)," said former attorney general and eminent lawyer Badri Bahadur Karki.

In the democratic system, any institution must follow the rule of law to tackle corruption. The constitution and laws do not allow any police institution like the CIAA to put any one in prison without adequate legal framework and by flouting the law. In a country like Nepal, which is on the preliminary phase of democratic institution-making, there is always the possibility for the misuse of authority for political vendetta.

"All constitutional rights and freedom are guaranteed to its citizens on the basis of assumption and premises that the state itself is willing and capable of protecting and preserving those rights for its citizens. But when the constitutional body like CIAA indulges to play foul and fraud and denies the guaranteed rights, then no rights and freedom could be effective and protected. When all other institutions are out to destroy and deny them, the only resort is the court of law. If the court fails, then no one can succeed," said advocate Karki.

From Hari Prasad Pradhan, the first chief justice of Supreme Court to present chief justice Kedarnath Upadhyaya, all chief justices of the Supreme Court have shown commitment to protect the fundamental rights of individual written and explicitly laid down in the constitution. But, the judiciary’s decisions are determined by individual personality and political and social situation.

The judiciary follows more proactive role with accountable government but it will play defensive role in autocratic system. From Interim Constitution of Nepal 1951 to the present Constitution of the Kingdom of Nepal 1990, all had guaranteed fundamental rights of and freedom of individuals. Under the article 88 of the current construction, the apex court is an institution to judge whether the state protect its citizens in exercising fundamental rights or not.

In all phases, the interpretations of laws and constitution and decisions are dependant upon individuals who head the courts. In the last twelve years, different chief justices have made efforts to uphold the constitution. From Bishwonath Upadhyaya to Keshab Prasad Upadhyaya and Mohan Prasad Sharma, all have left certain impression.

In his first tenure as a chief justice, first chief justice of Supreme Court Hari Prasad Pradhan had taken many important decisions when the constitution was fully functional. Regarded as a courageous chief justice, Pradhan’s second tenure was different since he took oath under another constitution with restrictive provisions. Under the Interim Constitution 1951 and Constitution of the Kingdom of Nepal 1961, the judiciary enjoyed absolute freedom and its decisions were remarkable.

Following the promulgation of the Constitution of Nepal 1962, the monarchy was
made the source of all power and sovereignty was vested upon it. Under the constitution, certain provisions were made to issue different types of writs and other orders as the court might think fit in order to protect the fundamental rights of the people.

Although it was restrictive in the sense that it allowed only limited powers of judicial review, and the concept of public interest litigation was not constitutionally acknowledged, some judges took liberal decisions with far reaching consequences even during that period. Despite restrictions, the judges had delivered some landmark verdicts upholding the spirit of human rights and human freedom.

Former CJ Khatri : Landmark decisions

Former chief justice Nayan Bahadur Khatri, who is now heading the National Human Rights Commission (NHRC), is one of them. His decision on the habeas corpus in the case of Yagya Murti Banjade was said to be one of the landmark decision. Khatri pronounced several such decisions during Panchayat period.

Former chief justice Bishwonath Upadhyaya also added many landmark decisions in the history of judiciary in Nepal. Upadhyaya, a renowned jurist, is known as a man of judicial skill.

Some decisions taken 30 to 40 years ago by then chief justices Ratna Bahadur Bista and Dhandendra Bahadur Singh are still regarded as best judgments delivered to protect individual rights and freedom.

After the promulgation of the Constitution of Kingdom of Nepal 1990, the judicial activism reached a new level and the court took many liberal and progressive decisions. In the last one year when there was no elected legislative and government accountable to the people, the judiciary, too, seems to have turned more conservative endorsing any acts taken by the executive and constitutional bodies.

The special court created to settle the cases related to corruption and misuse of authority seems to be working as rubber stamp of the anti-corruption watchdog. The court simply gives in to whatever demands made by the CIAA and the judges have hardly bothered about the freedom of individuals. To prove themselves clean, the judges are ignoring the procedural and legal provisions and legal safeguards given to individual.

The special court even endorsed the demand of the CIAA to make justice of the Supreme Court as an informant and endorsed the illegal detention for more days.

Nepal's early tendency to function under the Muluki Ain (civil code) was a process where law and prosecutor want to put individuals into the prison by hook or by crook. Although the country is practicing the western liberal democratic system and system based on rule of law, the court's whole function is yet to transform at par with the international system.

"Judiciary needs to transform its traditional role and it has to stand as a guardian of constitution and of individual freedom," said advocate Harihar Dahal, former president of Nepal Bar Association.

Nepal’s judiciary has seen many ups and downs in its five decade long practices of democratic and liberal system. In the process of constitutional evolution, the country has already been governed under five different constitutions with different modes of legislative and executive but judiciary is the only institution which survived as an institution of continuity in all political change.

In the last five decade, all forces, whether a revolutionary or liberal, have knocked the doors of the apex court against the arbitrary arrest.

The court may not fulfill hundred percent demands made by the petitioners but it has never sent back individuals empty handed. "Despite many restrictions and hindrances, the Supreme Court remains an open and transparent place where people can see rights and wrongs,” said a lawyer.

"Had the court settled my writ petition, I would not have to go to prison," said former minister and RPP leader Rabindra Nath Sharma who was detained by the CIAA on matter of his property investigations. Still Sharma has no option other than to knock the door of court.

Nepal's judiciary follows the practices like that of other democratic countries and it adheres to the principal and ideology of all democratic countries. US chief justice Marshall says, “The province and duty of the judicial department, to say what the law is.”

Under the article 86.1 of the Constitution of the Kingdom of Nepal 1990, the Supreme Court shall be the highest court in the judicial hierarchy. All the other courts and judicial institutions of Nepal, other than Military Court, shall be under the Supreme Court. The Supreme Court may inspect, supervise and give directives to its subordinate courts and other judicial institutions.

Article 88 confers upon the Supreme Court extraordinary jurisdiction commensurate with its status in the constitutional system, and to allow it to enforce fundamental rights and respond to the directive principles and policies of the state.

Under the article 88.1 any Nepalese citizens may file 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 this Constitution or on any other ground, an extra-ordinary power shall rest with the Supreme Court to declare that law as void either ab intio or from the date of its decision if it appears that the law in the question is inconsistent with the Constitution.

CJ Upadhyaya: Walking on tight rope

Under the article 88.2, the Supreme Court shall, for the enforcement of the fundamental rights conferred by this 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 of 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 view to imparting full justice and providing the appropriate remedy, issue appropriate remedy, issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.

Whatever the system may be, the judiciary is able to deliver the justice to the people defending fundamental rights of the people. From late B.P. Koirala to his many other colleagues have knocked the door of judiciary against the atrocities of state.

The Supreme Court Act of May 1952 introduced the writ system into Nepal for the first time and empowered the court to enforce the rights declared by the Interim Constitution 1951, and those laid down in the personal Liberty Act 1949 (later replaced by the Civil Liberties Act 1956). The Constitution of the Kingdom of Nepal 1959 was the first constitution to incorporate writ jurisdiction into the Supreme Court itself. The 1962 Constitution of Nepal also had similar provision.

"Justice without power is inefficient; power without justice is tyranny. Justice without power is opposed because there are always wicked men. Power without justice is soon questioned. Justice and power must therefore be brought together, so that whatever is just may be powerful and whatever is powerful may be just." Blaise Pascall.

“Those Who Deliver Justice Should Follow The Rule Of Law First”

— Late King Mahendra

Rule of law must be in effect in Nepal. My government has been making effort to establish the rule of law in Nepal. With the support from the country’s lawyers and common people, this aim will definitely be met. I am confident about that. To achieve success in this front, the Supreme Court should, honestly and independently, contribute. And I think the Constitution of Nepal is clear that it can do so. Concerned employees have to realize the kinds of trouble the citizens have to face by delays in settling the disputes and cases. This does not mean that the dispute should be settled without doing adequate investigations. But, the investigation process should not take unnecessary time and people should not be forced to bear unnecessary harassment. In this mater, I would like to caution all concerned people that those who deliver justice should follow the rule of law first.

Our Constitution has made the Supreme Court as an important and basic body to protect the rights of people. Supreme Court has to be prepared to fulfill this important objective. The judicial administrators should not favor particular individuals since the law does not recognize relatives or temptations. While imparting the judicial duties, seeking outside favor is heinous crime for judicial administrator as well as justice seekers. Both judicial administrators and justice seekers should understand this.

After the completion of this new building, the Supreme Court, I hope, will not have to face the scarcity of space and the good governance will be established under the rule of law. I want to remind you all that every one should deliver justice upholding the dignity of law by giving quick and impartial and equal justice to common people. I believe that in accordance with my strong feeling this temple of justice, at any cost, will provide people the rightful justice.

(Excerpts of the statement delivered by late King Mahendra in 2019 Magh 19 while inaugurating the building of the Supreme Court. Source Kanoon Patrika.)