Sunup of Federal Republican Constitution, Sundown of Unitary Charters in Nepal
May 04, 2018
28 March, 2018
The rule of law doesn’t exist unless there is an independent judiciary to help protect it. Independent and impartial judiciary is indisputably believed as one of the hallmarks of a vibrant democracy.
However, the elected governments often perceive an independent and strong judiciary with suspicion. The political class as well as the top brasses desire a weak and obedient judiciary which will scot-free them to implement any policies. Even there are scores of incidents which project that the judges were threatened by the government of the day.
The then US President Roosevelt (in 1930) asked the judges to dance his tune. Interestingly, his commandment worked. The US apex court stopped striking down any legislation. Likewise, the stand of Indira Gandhi-led government was to appoint “forward looking” judges who were committed to uphold its philosophy. On April 25, 1973, the Indira Gandhi government departing from earlier conventions, superseded three of the senior-most judges (who had decided against the government) and appointed AN Ray as Chief Justice of India (CJI). Much like Ray, next fortunate person was justice Beg. The government appointed Justice Beg as CJI by-passing Justice HR Khanna who was senior to him at that time. Consequently, justice Khanna resigned in protest. There are cases, like ADM Jabalpur, which hopefully serve as a reminder of what citizens could expect when judges stop striking down socially benevolent legislations as ultra-vires the Constitution.
It’s often said that the social development, prosperity and strengthening of democratic credentials in a society depends upon complete justice, independent judiciary and rule of law.
However, these cherished goals can be achieved only if all institutions of the state dispense their functions with dedication and devotion and pay heed to the Constitutional mandates.
In this context, the Constitutions of India, Nepal and United Sates of America (US) have bestowed upon the judiciary the deadly task of protecting the fundamental rights of the subjects. This is the reason the judicial departments in these democratic republics have been made independent of other organs of state to champion the cause of judicial independency. Because, the framers of the Constitutions (of US, Nepal or India) were of the opinion that an independent and vibrant judiciary can only succeed to garner public trust and foster social justice and Edward Coke’s concept of rule of law.
Coke is said to be the originator of the concept of rule of law when he asserted that king must be under god and law and thus vindicated the supremacy of law over pretensions of the executive. He was the first person who coined a maxim called “Law principally de legalite,” which means “Law will rule.” The concept is in the negation of individual’s governance.
Importantly, Coke’s Rule of Law (RoL) was later explained at full-fledged length by the much-acclaimed professor of Constitutional Law AV Dicey in his popular work The Law of Constitution (1885). Dicey’s notion of RoL was based on three principles: supremacy of law, equality before the law; and predominance of legal spirit.
On this note, Professor Wade in his book Administrative Law argues, “The rule of law requires that the government should be subject to laws rather than law should be subject to government.” So, an independent judiciary could only spearhead the cause of rule of law and constitutional spirit. Conversely, an obedient judiciary would be successful in upholding the philosophy of ruling party, not the philosophy of Constitution.
At this backdrop, the 1990 Constitution of Nepal, for the first time, recognized the principles of separation of powers and empowered the top court with the power of judicial review over the judicial, quasi-judicial or other state actions. This Constitutional arrangement was a steppingstone in the development of Constitutional Law in the Himalayan state. Importantly, the similar approach was echoed by the architects of the 2015 Constitutions wherein it has been provisioned that the higher judicature would have authority to determine the constitutionality of any law made by the state (Article 133). And, the doctrine of separation of power has been enshrined under Article 82(2) which envisages that the judicial department would not intervene in the affairs of executive.
In this regard, Wade and Philips in their work Constitutional Law (1960) observed, the theory of separation of power signifies that the same set of persons should not compose the functions of more than one organ of government. It may be noted that Article 82(2) of Nepali charter stands in favor of the view of Wade and Philips.
In contrast, there is an uncontested truth that only justice can ensure unity and integrity of a state and that justice can be prevailed by an independent judiciary. This is the reason why the highest court is always considered to be the ultimate adjudicator of dispute between one state and the other or between central government and state government(s) or vice versa. In these unprecedented situations, independency of judiciary is a must for limiting the tussles among the government machineries. As per Article 131 of the Constitution of India, the Supreme Court under ‘original jurisdiction’ clause is empowered with an exclusive jurisdiction to decide the disputes between the government of India at one side and one or more states at the other side; or vice-versa. However, similar approach has been adopted by the drafters of Nepali Constitution as well under respective Articles.
However, the US Constitution empowers the Supreme Court to consider only the matters relating to question of law or matters in want of Constitutional interpretation.
At this background, a potent weapon in the hands of judiciary could be the power of judicial review to establish the supremacy of Constitution. Judicial review is the procedure established in Britain where the courts have been conferred power to supervise the exercise of public power. In US, the Supreme Court can set aside any order pronounced or action taken by the administrative authority if it contravenes with ‘due process’ clause of the Constitution. Similarly, in India the concept of judicial review is not championed by a single Article. There are plethoras of Articles which include Articles 13, 32, 131 to 136, 142, 143, 226 or 246 to activate the cause of judicial review in India.
An independent judiciary helps in establishing the rule of Constitution in any state. It means the supremacy of Constitution can only be maintained when the judicial department is given an inherent duty to decide what law is. Chief Justice Marshall while dispensing the landmark judgment for Marbury v. Madison (1803) had observed that the ‘Constitution of US is supreme law of land’ and it’s the task of judiciary to declare what the law is. In the similar vein, Article 1 of the Constitution of Nepal envisages that all the laws inconsistent to 2015 Constitution shall, to the extent of such inconsistency, be void. This provision clarifies—in one way or some other—that the Constitution is supreme in Nepal like US and India but unlike England where parliament is hailed supreme.
Over and above everything else, there must be continuing efforts to assure the nation that a truly independent judiciary can exist in a democracy which would not be sabotaged at any pretext.
In a bid to canvass the concepts of rule of law, judicial review or separation of power, the judicial independency is a must. Justice HR Khanna himself in his autobiography-- “Neither Rose, nor Thorns”--mentioned that if there are three prime requisites for the rule of law, they are: strong bar, independent judiciary and enlightened public opinion.
Justice Khanna further argued that there can be no greater indication of decay in the rule of law than a docile Bar, a subservient judiciary, and a society with a choked or coarsened conscience.
It’s time for the states to acknowledge the uncontested saying of HR Khanna, at least, for maintaining constitutionalism in democratic set up. Its high time we realized that in a country with written Constitution, courts ought to have the additional functions of safeguarding the supremacy of Constitution by interpreting and applying its provisions and keeping all the authorities within the scope of Constitutional mandates.
Garner has rightly said that the rule of law is often used simply to describe the state affairs in a country where the law is observed and order is kept.
Still, it can be concluded that the independent, impartial and vibrant judiciary is a must in any healthy democracy to garner the breeds of rule of law.
May 04, 2018
March 07, 2018
December 03, 2017