Judiciary and Human Rights 1995
MODERN democratic system of government embraces an efficient structure of judiciary in order to vitalize the supremacy of the constitution, to provide embodiment to the norms of a legal state and to preserve human rights. The ultimate authority lies with the judiciary to examine whether the law enforcing agencies and personnel have exercised their rights keeping themselves within the limits defined by the constitution and the law. Though the policy issues and political questions do not fall under the court's jurisdiction, certain issues that defy solution through political process, have been resolved by the court under the cover of the constitution and the law. Therefore, an independent and efficient judiciary is considered a basic precondition of democracy and the greater responsibility to protect the human rights also lies with the judiciary. The constitution of Nepal 1991, which was promulgated with an objective of maintaining the fraternity and unity among the Nepali people by protecting human rights and on the basis of freedom and equality, has rendered the independent and efficient judicial system irreversible, accepting the role of the judiciary in the protection of human rights. The constitution has vested the Supreme Court an extraordinary jurisdiction ranging from annulling laws unnecessarily restricting the fundamental rights to issuing of other appropriate orders for the enforcement of fundamental rights.
In the year 1995, the Supreme Court appears to have played some positive role mainly in the enforcement of the right to equality as guaranteed by the constitution, in the protection of the right to freedom, in the enforcement of criminal justice, in the enforcement of the right to information and in the decision it has made regarding the issues of public rights and concern. Likewise, the decision of the Supreme Court made this year on the case of dissolution of the Parliament remained a most talked about subject.
Controversy on the Dissolution
of the Parliament (1995)
When Prime Minister Mana Mohan Adhikari exercised prime minister's prerogatives and recommended the dissolution of the House of Representatives, in accordance with the Article 53(4) of the Constitution in the wake of the convening of a special session of the House to file a no-confidence motion against the Prime Minister of the minority government of Communist Party of Nepal (UML), various writ petitions were filed at the Supreme Court contending that the recommendation made for the dissolution of the House of Representatives and to hold mid-term polls was against the fundamental rights as guaranteed by Articles 11, 12, and 16 and other constitutional provisions as defined by Articles 53, 54 and 63 of the Constitution. In the separate writ petitions filed by seven persons including Opposition Party Leader Sher Bahadur Deuba, the petitioners have argued that the Prime Minister cannot offer his recommendation in accordance with Article 53(4) of the constitution until the special session already convened in accordance with the Article 53(3) of the Constitution sits and completes its session, Article 53(4) of the Constitution which allows the recommendatory rights to the prime minister cannot be implemented so long as there is a possibility of forming an alternative government, the Prime Minister's recommendation is inspired by malicious intention of evading no-confidence motion and the right of the legislature has been infringed upon. The writ petitions are seen to have demanded that the Supreme Court should restore the status quo ante prior to the situation of the recommendation by repealing through a certiorari order, the entire proceedings concerning the dissolution of the House of Representatives insisting that the recommendation of Prime Minister Mana Mohan Adhikari was erroneous. In his written answer Prime Minister Mana Mohan Adhikari argued that the recommendation to dissolve the House of Representatives is the unmitigated prerogative of the Prime Minister, there is no restrictive clause in the Article 53(4) of the Constitution, the recommendation for the dissolution of the House of Representatives and the actual dissolution are both purely political decisions and this question should not be considered from the limit of constitutional and legal legitimacy, recommendation for the dissolution of the House of Representatives has been made with the realisation of a need to go to the people to put an end to instability and confusion. On the basis of the above argument he demanded the dismissal of the writ petition.
On the basis of the fact and arguments, the Supreme Court determined the following questions on which legal decision was needed:
Whether the recommendation of the honourable Prime Minister to dissolve the House of Representatives is justiciable for reasons of involvement of political issue;
Whether it is constitutional to dissolve the House of Representatives on the basis of Article 53(4) after special session of the same has been convened on the basis of Article 53(3) of the Constitution;
Whether a government can be formed as prescribed by Article 42(1) as an alternative to the government formed under Article 42(2);
Whether the recommendation for the dissolution of the House of Representatives made by the honourable prime minister is malicious; and
Whether a court order is necessary as demanded by the petitioners.
On the above questions, the majority of the eleven member Bench of the Supreme Court (Chief Justice Vishwanath Upadhyaya, Justice Surendra Prasad Singh, Justice Rudra Bahadur Singh, Justice Mohan Prasad Sharma, Justice Keshav Prasad Upadhyaya, Justice Laxman Prasad Aryal, Justice Kedarnath Upadhyaya, and Justice Govinda Bahadur Shrestha) decided the following:
Since the Constitution is both a political and legal document, the constitutional controversies may include political as well as constitutional and legal issues. Certain issues of controversy cannot be political just because they are related to the constitutionally conferred rights of the Executive or the Legislature. Article 88 of the Constitution was conferred extraordinary rights to investigate into the legitimacy of all the actions performed in the process of exercising constitutional rights. In the present constitutional despute, it is necessary to decide whether it conforms with the constitutional practice to dissolve the house of representatives before the proceedings of the special session called in conformity with the petition of the members of the House of Representatives under Article 53(3) of the constitution to file the no-confidence motion as provided for by Article 59(2) of the constitution. The decision of these questions cannot be made by any other agencies or authorities except the Supreme Court. Since the issues in question are constitutional questions rather than political ones, they are subject to judicial review. Likewise, all the actions performed in the name of either His Majesty or the Prime Minister are subject to judicial decision.
The parliamentary session convened under Article 53(1) of the Constitution cannot be convened until the Council of ministers so decides and even if it is called, it can be prorogued as and when the Council of Ministers so decides. This being the case, the regular session of the House of Representatives cannot come of use if the members of the house of Representatives deem it necessary to discuss or investigate into the government's policy and programmes, the working method of the Council of Ministers or the conduct of the ministers when the House is not in session. In view of this, our constitution has made a provision for convening of the House of Representatives at the initiative of its members, allowing them to prepare their own agenda for discussion. Therefore the right to dissolve the House of Representatives provided by Article 53(4) of the constitution should not be used with a motive to evade this provision which helps in the consolidation of parliamentary system, render it useless or ineffectual. The Prime Minister can recommend the dissolution of the House of Representatives to seek people's mandate as needed under Article 53(4) of the constitution. But this right is not absolute right. It is not enough to refer to the Article 53(4) of the constitution to dissolve the House of Representatives as provided by it. It is necessary to keep the provisions made in other articles of the constitution and the spirit and objectives of the constitution in mind. In this context it is necessary to consider over the provisions made in the constitutions to promote the basic norms and values of parliamentary system and multi-party which are enshrined in the constitution. The rights under Article 53(4) of the constitution cannot be used against the spirit of the constitution.
It is also against the established tradition and practice of the parliamentary system to dissolve the House of Representatives without giving any thought to the possibility of forming another alternative government capable of obtaining the confidence of the House of Representatives, after the no confidence motion against the Prime Minister is passed. To obtain the vote of confidence by one government and the formation of another government conforms with the constitution and the established practice and norms of the parliamentary system of government. In this situation, since the Prime Minister has offered recommendation to the King making a wrong interpretation that another government cannot be formed even when the vote of no confidence is passed, the recommendation itself is erroneous.
The recommendation of the Prime Minister to dissolve the House of representatives under Article 53 (4) of the Constitution is seen in conflict with the spirit and provision of the Constitution, and that is enough to reach to the verdict, it does not look necessary to enter the question of malicious intention etc. and to make a review on it. Since the recommendation of the prime Minister is seen unconstitutional, the dissolution of the House of Representatives on June is also unconstitutional and devoid of any legal effect from the very beginning. It is declared in this verdict that the House of Representatives is able and competent to be restored to the situation prior to the dissolution and continue its functions.
The viewpoints of the three justices (Justice Trilok Pratap Rana, Justice Om Bhakta Shrestha and Justice Krishna Jung Rayamajhi) who wrote note of dissent against the majority verdict is seen as follows :
Since the makers of the constitution themselves have left Article 53 (4) of the constitution free and devoid of any restrictive clauses, no restriction can be laid around it in the name of congruent interpretation, If we interpret that the Article 53 (4) cannot be used when Article 53 (3) has been used, there is a risk of adding a condition to it which was not intended by the makers of the constitution. This will create a restrictive article in the place of unhindered one. Hence article 53 (4) is the prerogative of the Prime Minister.
Since the Prime Minister, vested with constitutional rights has offered recommendation to dissolve the House of Representatives in conformity with the constitution, and His Majesty has dissolved the House of Representatives exercising his discretionary power and that the declaration made by the King to fix the date of the election is free from constitutional error and conforms with the values and norms of the Constitution, the writ petition should be declared null and void.
As result of the decision, mass organisations considered close to the Communist Party of Nepal (UML) took out procession against the decision and the justices including the burning the effigies of Chief Justice, contending that the majority decision of this case did not conform with the precedence set by the case of the dissolution of the House of Representatives 1994, during the tenure of Former prime Minister Girija Prasad Koirala. Contempt of court cases are under judicial consideration against those who opposed the decision or issued statement and made comments on the issue. Though the then government could not take the majority decision of the Supreme Court easily, the decision was eventually implemented and the Mana Mohan government handed over power in accordance with the constitutional provisions.
Human Rights practice and the Supreme Court
The Supreme Court had made many important decisions on the enforcement of the right to equality, the arbitrary dismissal of the civil servants by the government, enforcement of women's rights, providing access to the information of the issues of public importance, preservation of environment and the right to justice. The Supreme Court had protected the right to equality by passing an important verdict in the case filed by Badri Kumar Basnet and Indra Man Karmacharya against the arbitrary dismissal of the civil servants by the government. In the case filed by Badri Kumar Basnent, the supreme Court has held that if a law in the same context is enforced in as unequal manner it becomes inequality, and is against the fundamental rights to equality as guaranteed in Article 11 of the Constitution. (Badri Kumar Basnet, defendant : His Majesty's Government including the council of Ministers. Date of Decision January 4, 1995), Every agency or authority responsible for running the affairs of state should be able to prove the rationale of their action including the cause of their action. Therefore, even the use of discretionery power conferred by the constitution should be used prudently and justiciably. A state is a legal authority and the government runs the administration of the state. It is the inherent characteristics of the government functions that the acts of every legal personnel conforms with justice. There should be appropriate basis, cause and situation for retaining some employees and dismissing others and the power of state should be used impartially and prudently. (Indraman Karmacharya, defendant ; His Majesty's Government, including the Council Ministers, Date of decision : January 23, 1995). The above interpretation of the Supreme Court has provided security to the civil service by making it clear that civil servants should not be dismissed arbitrarily. In this context of right to equality being guaranteed prohibiting the discrimination on the basis of sex, Mira Kumari Dhungana filed a case at the Supreme Court demanding that the discriminatory laws which still existed in the chapter relating division of family property in Nepal Civil Code, should be repealed as they conflicted with Article 11 (1), (2) and (3) of the constitution. In this regard, the Supreme Court, has issued a mandatory order to His Majesty's Government to present a bill at the Parliament within one year of the issuing of the order with necessary consultation with recognized women's organisations, sociologists, concerned social organisations and legal experts admitting that it was necessary to make a comprehensive review of family law regarding property (Writ No. 3392, Mira Kumari Dhungana and Mira Khanal, defendant: His Majesty's government, including Ministry of Law, Justice and Parliamentary Affairs, date of decision: August 15, 1995).
The Supreme Court has also played an important role in enforcing the right to criminal justice by issuing habeas corpus order saying that it was against law to hold a person in detention without a clear and unambiguous order from competent authorities and that a letter requesting to hold some one in detention without any valid ground, was illegal (Punya Prasad Kafle, defendant: Myagdi District Court, date of decision: August 22, 1995). Similarly, it has also decided that as constitution has provided that no convict will be awarded more sentence than prescribed by the prevailing law at the time of the commission of crime, it is illegal to hold a person in detention for a longer period by adding even the sentence as provided by the amended law (Kiran Shrestha, defendant: Kathmandu District Court, date of decision: August 22, 1995)
The Constitution of Nepal 1991 has guaranteed the right to information by allowing every citizen to ask and get information on any subject of public importance. But no timely acts and laws have been enacted to make the enforcement of this right effectively. The narrow attitude of the government still persists in the flow of information on issues of public importance. The government does not look aware of this need despite the instruction of the Supreme Court to enact laws to make the right to information more effective (in regard to various cases. (Dr Rajesh Gautam, defendant: His Majesty's Government, including Ministry of Water resources, date of decision, May 8, 1994). The Supreme Court is also seen to have issued order to the government to provide information to Advocate Bal Krishna Neupane who filed a writ petition at the Supreme Court accusing the government of infringing the right to information when it refused to provide him information on the understanding about the action plan regarding the development of water resources signed between Nepal and India on December 28, 1993. (Writ No. 3108, Advocate Bal Krishna Neupane, Defendant: His Majesty's Government, Ministry of Water Resources, date of decision October 13, 1995.
In regard to the writ petition filed by Surya Prasad Dhungel, demanding for an appropriate order in the name of the concerned agencies to preserve the clean environment of Godavari area in view of the environmental devastation and the effects brought about by the environmental damage, the Supreme Court states: "Since the pure and clean atmosphere is a part of a whole life, the pure and clean atmosphere falls under the right to life. The government is also seen to have made decision towards the preservation of environment as per its signature on the decisions of the World Environment Conference organised in Brazilian capital Rio De Jenerio in 1992. It is seen extremely necessary to make and enact an effective law to preserve the environment . A law is indispensable for an appropriate provision of crime and punishment regarding the environment.
Since the existing laws are scattered and insufficient, it is necessary to enact laws encompassing entire aspects of environment. It seems urgently necessary to enact environmental laws to end the confusion in this field and to provide embodiment to the national and international responsibility to environment. Similarly, there is no despute that industry is the bed rock of national development of a country. The country and the society both need development and it is equally necessary to maintain balance between the industry and environment. It is necessary to establish balance between the need to give continuity to development activities and the priority for the preservation of environment. Without clean environment, man cannot lead a healthy life. Therefore, the preservation of the environment is an end in itself. With this fact in mind, it is necessary to devise ways to preserve the environment. In view of the absence of any remedial measures regarding the sensitive and humanitarian issue like the preservation of the environment of Godavary having national and internal significance, a mandatory order has been issued to implement the Mining Act 1985., to enact necessary laws to preserve the area from the air, water and sound pollution and initiate action towards the effective preservation of the environment of the Godavary area." (Surya Prasad Dhungel defendant: including the Ministry of Forest and Soil Conservation, date of decision: 10/31/1995)
The writ petition filed in 1993. demanding the annulment of the provision of death penalty in Army Act 2018, Succession to the throne Act 1987, State Offence and Punishment Act 1989 as the provision for death penalty in those laws conflicts with the fundamental rights guaranteed by the constitution, has not been decided yet (Krishna Prasad Siwakoti, defendant: His Majesty's Government including the Cabinet Secretariat). Similarly the writ petition demanding for a necessary order in the name of His Majesty's Government to abolish the system of bonded labourers still prevalent in Kailali and Kanchanpur districts of western Nepal, specially in the context that the Declaration of Human Rights 1948, Human Rights Conventions 1966, the Additional International Protocal on Political Rights 1963, the Covenant against Slavery 1926, the Amended Covenant against Slavery (signed in September 25, 1953), Protocal signed in Geneva, the covenant on the abolition of slavery, slave trade and institutions and practices promoting slavery 1956, and other international treaties and conventions have stood for the abolition of slavery and that Nepal has also ratified all those documents including their incorporation in the constitution and the legal system, has not yet been decided (Sushil Raj Pyakurel, defendant: His Majesty's Government, including the Cabinet Secretariat). It is an important aspect of human rights to make dispensation of justice quick, dynamic and easily accessible. But the dispensation of justice has not been quick dynamic and easily accessible to all due to various reasons. The conference of the justices of the SAARC nations are seen to have stressed in their Kathmandu Declaration, on the respect for the rule of law, dispensing justice within the framework of the theory of the rule of law and the need of the dispensation of justice to be quick and dynamic. Even the Conference of the judges of the Supreme Court, and the chief judges of the Appellate courts (1995) are seen to have passed various resolutions to introduce amendment in the procedural law to ensure quick and efficient justice. Similarly, it has also passed resolution to hold in camera proceedings of the cases regarding rape, divorce, establishing relationship and other sensitive crimes and legal cases on women. Proposals have also been put forward on the need for the state to provide free legal service to the weak and incapable and to enact a legal aid law as directed by the constitution.
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