Thursday, November 19, 2009
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.
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.