Something’s not right: A list of rights without inbuilt judicial sanctions is not worth its name

A Supreme Court which lacks independence, which has to be accountable to a legislative committee, and which is always under the threat and duress of a legislative majority cannot protect any fundamental rights whatsoever.

http://www.ekantipur.com/the-kathmandu-post/2009/11/18/Oped/Somethings-not-right/2158/

BIPIN ADHIKARI
lawyers_inc_nepal@yahoo.com

The recently released exhaustive list of fundamental rights and directive principles of state policy proposed under the new constitution of Nepal is not going to impress the country’s lawyers and many other critical thinkers here. The list is not without its built-in problems, but even assuming that the problems will be sorted out at a later stage, there are other crucial issues still unattended to. One such problem is that the list is without judicial sanction.

The issue of sanction is so important. A right without remedy is no right at all. In a way, even the Panchayat constitution, criticised on so many grounds, guaranteed a list of basic fundamental rights. Some rights were guaranteed only to Nepali citizens, and some were guaranteed to both citizens and non-citizens. The right to proceed for the enforcement of these rights was guaranteed by Article 16, and the Supreme Court was empowered with extra-ordinary jurisdiction to deal with any eventuality of their violation subject to the provisions of the constitution.

Like the constitution of 1959, the Panchayat constitution also provided for a Supreme Court, a court of record with the power to impose punishment for contempt of court. The king was to appoint its chief justice after consulting, if he so desired, the members of the state council and other judges after consultation with the chief justice. Apart from ordinary jurisdiction, it also had extraordinary jurisdiction to issue directives, orders or writs for the enforcement of fundamental rights, or in cases where no other remedy is provided, for the enforcement of rights conferred by any other law for the time being in force.

The decision of the Supreme Court was to be final. The Judicial Committee which could ask the king to order a revision of a case was basically the king’s committee. In any case, the principle of law declared by the Supreme Court in cases within its jurisdiction was binding on all courts. A Judicial Service Commission was also created to organise judicial service. But the functional aspect of the Supreme Court was not promising.

The constraints on the Supreme Court which according to the constitution exercised judicial powers of an absolute monarch were many. Nevertheless, the Supreme Court had performed its due role in cases of sensitive and serious political nature involving the monarchy, foreign relations and politics. It had also in many instances exercised its extraordinary power of judicial review assertively and effectively on the grounds of violation of natural justice and refusal of right to legal representation, non-conformity with the procedure prescribed by law, dismissal under a wrong way, non-disclosure of grounds and so forth.

There were some decisions which equally put questions on the status of the Supreme Court. It was not able to maintain consistency in its decisions in several cases, notwithstanding publicly expressed commitments and emphasis of justices in favour of judicial control for preserving the rule of law. The area of dissatisfaction for many against the passive stand taken by the Supreme Court is related to restrictions on fundamental rights imposed by Article 17 (2) and 11 (2A).

The court had, no doubt, failed in some instances to support the cause of the constitution by withdrawing itself from going into the property of the Act simply because the preamble of the enactment had shielded it with the “firewall” of “public good”, hence the judicial activism.

When the constitution of 1990 was promulgated 28 years later, all these problematic issues were reconsidered, and some outstanding arrangements were made to make sure that the Supreme Court, which got continuity in its form, changed significantly in terms of its substance. Not only was its power as the guardian of the constitution acknowledged, but efforts were also made to make sure that it was independent and able to protect the fundamental rights of the citizens.

In fact, as a Duke Professor Donald L. Horowitz has emphasised in a 2006 article, as of 2005 more than three quarters of the world’s states had some form of judicial review for constitutionality enshrined in their constitutions. It is a very popular constitutional institution. Even some undemocratic countries take it as a feature that constitutions should inculcate (even if in substance they imply quite a different angle). Although constitutional experts may be divided on whether the power of judicial review shall lie in the Supreme Court or a constitutional court separate from this conventional institution, it has become more and more difficult for constitution makers to avoid judicial review.

The introduction of a Supreme Court for the United Kingdom provides greater clarity in our constitutional arrangements by further separating the judiciary from the legislature.

The concept paper and preliminary draft submitted by the Constituent Assembly (CA) Committee on Fundamental Rights and Directive Principles, no matter how good they are, cannot be properly studied without referring to the reports of the Committee on Judicial System.

The later report recommends infamous provisions in the new constitution which belittles the parameters of the Supreme Court as the guardian of the Constitution, and robs the power of judicial review from the Supreme Court in significant sense. It can neither interpret the constitution in important sense, nor it can judge upon the constitutionality of any law where it matters most. The report also makes sure that the Supreme Court and its judges are under parliamentary control in all matters relating to their appointment, dismissal and the job of judicial decision making.

A Supreme Court which lacks independence, which has to be accountable to a legislative committee, and which is always under the threat and duress of a legislative majority cannot protect any fundamental rights whatsoever. If this is so, the question is how the concept paper and preliminary draft submitted by the CA Committee on Fundamental Rights and Directive Principles can safeguard the fundamental rights of the Nepali people. A list of rights without inbuilt judicial sanctions is not worth its name.

My law, your law

Nepal could study the Turkish model amind demands to communalise personal laws

The importance of secular laws and institutions cannot be over-emphasized in a progressive society. They are important because they are essential for the protection and promotion of human rights of all the people. But many democratic countries have conceded to the pressure and created exceptions in their legal systems to remain politically correct. The most recent example is Britain, which has officially adopted Islamic law, with sharia courts given powers to rule on Muslim civil cases.

Bipin Adhikari
lawyers_inc_nepal@yahoo.com

A Muslim social activist in Lahan was asking this critique why the Muslims in the Constituent Assembly had not been able to garner enough support to make sure that the Muslims of Nepal, as many other Muslims of the world, were guaranteed the right to be governed by their own personal laws as far as their communities were concerned.

The forum that this author was participating in was on the theme of local self-government in the scheme of state restructuring, which was not something that attracted his attention at that moment. The question was very simple, but the answer remains difficult for many reasons.

Nepal has been practicing a uniform civil code from the very beginning. The National Civil Code (known to Nepalis as the New Muluki Ain) prescribes uniform rules for all Nepali communities and cultures. The code covers most of the laws governing rights relating to property and personal matters like marriage, divorce, maintenance, adoption and inheritance. The code allows communities and cultures to act according to their traditions in these matters, but the standard rules apply to everybody in the country, and the law courts in Nepal administer them uniformly except when exceptions are permitted by the code itself. As such, the code has been applied to Muslims as well since a very long time.

It was early this year when the Nepal Muslim Sangh, a federation of Nepali Muslim communities, made a request to the government to accept its six-point demand. These demands were intended to protect the interest of Muslims as a minority community in the country. The federation wanted the country’s Maoist government at that time to acknowledge that Nepali Muslims had a separate identity, and that this warranted the creation of a separate Islamic Affairs Commission, an Islamic School (Madrassah) Board, a Hajj Committee (for annual pilgrimages to Mecca) and the introduction of Islamic personal law based on the sharia for Muslim communities.

The Muslims, who number just over 800,000 or about 3.5 percent out of a population of 26 million, constitute Nepal’s second largest religious minority after Buddhists. On March 15, the government even signed an agreement with their representatives which, however, declined to accept their demand for recognition of sharia-based personal law in the new constitution.

Many Nepali Muslims in recent years are in touch with Muslims in other countries through their civil society organizations. A significant portion of Indian Muslims were able to receive citizenship certificates before the Constituent Assembly elections in 2007. Those who are familiar with the legal arrangements in India question why Nepal’s legal system cannot afford the same treatment to Nepali Muslims what the Indian legal system has afforded to Indian Muslims. They are aware that in India, family law is still determined by the religion of the parties concerned, despite many advances made by the legal system in other sectors.

While Muslims and Christians in India have their own personal laws, Hindus, Sikhs, Jains and Buddhists come under the Hindu law enacted by parliament. India accepted communalizing family law as an extraordinary measure of protection to minorities for healing the wounds of the partition caused by communal polarization. The question is whether India should be followed as the best example in this case.

One must also not forget that the constitution of India directs the state to work towards a uniform civil code for the country (assuming that these arrangements are temporary interventions). This demand essentially means unifying all these personal laws to have one set of secular code that will apply to all citizens of India irrespective of the community they belong to. Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are discriminatory and violative of the basic rights of Indian citizens.

The Indian Supreme Court, which has established a very sublime image for itself as the guardian of fundamental rights of Indian citizens, has repeatedly regretted the fact that the state has not implemented this provision even after all these years. It has indeed been bold enough to instruct the government that it must move forward towards a secular regime.

The importance of secular laws and institutions cannot be over-emphasized in a progressive society. They are important because they are essential for the protection and promotion of human rights of all the people. But many democratic countries have conceded to the pressure and created exceptions in their legal systems to remain politically correct. The most recent example is Britain, which has officially adopted Islamic law, with sharia courts given powers to rule on Muslim civil cases.

The British government has sanctioned the powers for sharia judges to rule on cases ranging from divorce and financial disputes to those involving domestic violence. Rulings issued by a network of five sharia courts are enforceable with the full power of the judicial system, through the county courts or High Court. These courts are hearing cases where Muslims involved agree to be bound by traditional sharia law; and under the 1996 Arbitration Act, the court’s decisions can then be enforced by the county courts or the High Court. Previously, the rulings of sharia courts in Britain could not be enforced, and depended on voluntary compliance among Muslims.

So a sort of parallel legal system has already come into the picture there. Critics fear that Britain’s Islamic hardliners will now try to make sharia law the dominant legal system in Muslim neighborhoods, and warn that women often receive less favorable treatment at the hands of the traditional Islamic courts.

It is good that this country already has a system of uniform civil law. One possible alternative for Nepali Muslims would be to review the provisions of this national civil code and ask the government to revise and streamline the provisions which are objectionable from a secular point of view. Sharia law has certain religious values for Muslims, but then secular laws would have that value for every community.

It is interesting to note that Turkey, a predominantly Muslim state, has a secular constitution which provides for freedom of religion and many other human rights. It has very carefully worked out a civil code that very keenly secures the rights of all communities. The government, however, imposes some restrictions on all religious expression in its offices and state-run institutions, including universities, usually for the stated reason of preserving the state’s secular character.

The secularity, bearing the meaning of protection of beliefs, plays an important role to protect the state in Turkey. The region has a long and rich Islamic tradition stretching back to the dawn of the Seljuk period and the Ottoman Empire. Yet it still believes that secular institutions can serve all. This model could definitely be studied.