KATHMANDU: Politicians, when they are enjoying power, don’t like judicial activism. Dr Tulsi Giri, during King Gyanendra’s regime, opposed judicial activism. He said the country would head toward judicial anarchism.
Dr Giri, the first Vice-President of the then King Gyanendra led cabinet, was reacting to the Supreme Court’s decision to free democratic leaders from detention and uphold their fundamental rights.
Dr Giri, as the right hand man of King Gyanendra and the man behind the gag on the press, was trying to suppress the people’s movement..
At the time, the civil society, the media and the lawyers were on the streets, and hundred were being detained. The Supreme Court favoured the democratic rights and forced the release of hundreds of political activists through habeas corpus petitions. Dr Giri’s outburst against the judiciary was an example of a dictatorial attitude.
During the same period, veteran democratic leader Girija Prasad Koirala also made similar remarks against the judiciary. He said the Supreme Court should be shifted inside the royal palace. Koirala was reacting to the Court’s decision to uphold the probe by Commission for the Investigation of Abuse of Authority (CIAA), which was trying to ascertain whether his earnings were legitimate.
The apex court, later scrapped the contempt of court charge against him. But he had to visit the court to explain his remarks. In defence, he said that his remarks were intended to make the judiciary more independent and did not seek to undermine its integrity.
At present, the UCPN-Maoist CA members are working hard to keep the judiciary under the parliament. They do not want to give the Supreme Court the rights to interpret the constitution and law and they want the parliament to control the appointment and dismissal of judges-with the intention of making the judiciary subservient to politics.
The Maoist CA members have already decided to shift the power of the judiciary to the parliament. In doing so, they have gone against their electoral promise of upholding judicial independence. The Maoist move to curtail the court’s authority is not surprising. The apex court has scrapped many decisions passed by the Maoist-led government during its seven-month rule. The apex court issued a number of interim orders against the Prachanda-led government. Among others, the Supreme Court blocked the government’s decisions related to appointment of priests in Pashupatinath, appointments in the National Academy, recruitment of soldiers by the Nepal Army, and retirement of eight brigadier generals.
At a time when the Constituent Assembly is attempting to secure more fundamental rights in the Constitution, curtailing the power of the judiciary would make these constitutional provisions meaningless. Curtailing the
apex court’s authority means limiting the exercise of fundamental rights, because only an independent judiciary can safeguard
the rights enshrined in the constitution.
“We are demanding more fundamental rights for women, the people with disability, the people of marginalised communities, the youth and children,” says advocate Sabin Shrestha. “These rights would be meaningless if there is no independent judiciary to enforce them.” According Shrestha, there is no guarantee that the rights would be implemented by just writing them in the constitution.
According to a visiting US lawyer Deva Sadoff, the central principle of democratic constitutions is the separation of power and checks and balances. “The curtailing of the judiciary’s power means going against this principle as this would make the parliament superior than the other state organs,” Sadoff said recently. “We cannot even imagine going against the theory of power sharing and check and balance.”
Political parties are paranoid of the judiciary and the press while they are in power, but they need their help while in opposition.
According to Bhimarjun Acharya, a constitutional expert, there is no need to be paranoid about the independence of the judiciary given the experience. “The centralisation of power and curtailment of apex court’s power to judicial review would create anarchism in the country,” he says. “If the apex court does not have these powers we cannot enjoy the democratic rights.”