Restraintism and its Relevance in the New Judicial Order of Nepal

Bipin Adhikari
Law Bulletin, Year 6, Volume 54, Number 6, 1992 (at pp 6-13)
Nepal Law Society

"When men act on the principle of intelligence, they go out to find the facts and to make their wisdom. When they ignore it, they go inside themselves and find only what is there. They elaborate their prejudice, instead of increasing their knowledge." - Walter Lippmann

With the promulgation of the new Nepalese Constitution which establishes a powerful Supreme Court it has become necessary to craft a theory of adjudication providing not merely a far off ideal, but a practical plan of action of judges within the constitutional political structure. While this author has nothing new to suggest, the idea is to point towards the importance of restraints and its relevance in Nepal's new judicial order.

Unlike legislators and the executives of the state, the judges of the Supreme Court are appointed to the office, not elected, and serve for a term that can be terminated only through a difficult parliamentary process. They have full authority regarding declaration of what law is and its construction. They are afforded absolute protection from any liability arising out of the discharge of judicial functions and they are not subject to punishment even if their actions are taken in bad faith. No discussion can be made in any house of the parliament about anything done by a judge in the course of performing his/her duties. Likewise, the parliamentarians have no right to comment to a matter sub judice in any court of Nepal. Besides, the Supreme Court has been defined as the Court of Record. Its records have evidentiary value and are not to be questioned when produced before any court. Any blatant and outrageous attempt at undermining the independence and impartiality of the court and the lowering the prestige and dignity can be punished.

It is evident why this power is given to the Supreme Court. The framers of the constitution wanted to enable judiciary to efficiently protect liberty of the people from an authoritarian government, vast bureaucracies and tremendous resources of the modern state. They wanted the Supreme Court to defend the constitution and protect justice and democracy of powers which the constitution inculcates in its scheme adhering to the rule that legislator alone must legislate, judges alone must adjudicate, and only the government and the agencies it controls must issue regulations and execute in their status. But the nature of the job they are expected to handle is different and peculiar to their own nature.

Despite the equality of status the role of the Supreme Court and its impact on the other two branches of government are far-reaching. It can cause the collapse of a legitimate government, create law and order problem, invite economic crisis, lead to the failure of foreign policy or even create situations conducive to a civil war. It has the sort of power which could be used to declare itself as the supreme legislature and if conspired with the majority party in the parliament its power can destroy the present nature of the constitution which has been achieved after a great struggle for democracy.

Any citizen of Nepal is entitled under the constitution, to file a petition in the Supreme Court for the declaration of any law of any part there of as void, being inconsistent with the constitution on the ground that unreasonable restriction has been imposed in the enjoyment of the fundamental rights or on any other ground. If the Supreme Court finds that the impugned law contravenes the provision of the Constitution it can declare that law as void ab initio or from the date of the decision. This provision under Article 88 (1) of the Constitution severely limits the law making power of parliament which has hitherto unquestionably been enjoyed by the British parliament along whose tradition we have devised the parliamentary system of government. It is not an exaggeration at all to say that law is what the Supreme Court says it is. This gives the impression that the Supreme Court has supremacy over executive and legislature because it can refuse to enforce a statute or honor an executive act which is deemed to be repugnant to the constitution.

Apart from this, Article 88 (2) of the constitution confers on the Supreme Court an extra ordinary power to issue an appropriate order to the government or its agencies for the enforcement of fundamental rights or to give relief to the citizen where there is no alternate, adequate, or effective remedy for the enforcement of a legal right. In addition to this, the Supreme Court has also the extra ordinary power to issue the necessary and appropriate order for the determination of any constitutional or legal questions involving public right or interest.

This Article not only enables the Supreme Court judges to issue appropriate prerogative writs as in the case of British common law courts but also enlarges the traditional concept of locus standi and opens up the gate of the Supreme Court to the public interest litigants as has been permitted in recent years by the U.S. Supreme Court. In other words Article 88 (2) also reflect a collectivistic system in which social collective and diffused rights of groups, classes and communities are also treated the same way as individualistic philosophy of the rights of man is treated. It will be surprising to many constitutional lawyers of India and the U.S.A. that the strategy of public interest litigation in Nepal is not a Judge-led or Judge-induced strategy; rather it is an integral part of the constitutional scheme for the protection of rights. Admittedly, the Supreme Court has its check in every aspect of executive and legislative activities. The power of judicial review is, thus, by no means an ordinary power of the Supreme Court. We therefore, can say without exaggeration that the Supreme Court in Nepal has more powers than any Supreme Court in any other part of the world.

In this background it is crystal clear that the framers wanted a strong Supreme Court as a part of democracy of Nepal. The underlying principle is that the people on which the sovereignty of the nation lies should only be ruled by legitimate law and just procedure. The framers have tried to introduce into the constitution the best elements of all matured legal systems. Often the tragedy, however, is that we import easily the words from Westerners but inadvertently leave their meaning and concepts in the same countries. We must keep in mind that the authority to be exercised by the Supreme Court is purely judicial authority. Its power, therefore, must be distinguished from the executive and legislative power. Courts have just a general power to decide and pronounce a judgment and carry it into effect between two persons and parties who bring a case before it for decision (and also such specific powers as contempt powers, power to control admission and disbarment of legal professionals, power to adopt rules of court, etc). It is mainly a power involving exercise of judgment and discretion in determination of questions of right in specific cases affecting interests of personas or property, as distinguished from ministerial power involving no discretion.

This power frankly stating, is not a power to intrude into legislative and executive matters. The Supreme Court, and for that matter any other court, is not a general administrator of the country. Administration is the responsibility or government which is under direction and control of parliament. A responsible administration has its own priorities and compulsions in a democracy. Constitution is presumptively committed to representative government. Trumping the decisions of the society duly enacted by the representative branches is a problematic act that is permissible only when the authoritative text strongly suggests it. So far as possible, the Supreme Court should, therefore, view the acts and actions as constitutional unless it is convincingly demonstrated that they are not. This is the reason why renowned American Justice Frankfurter did not forswear judicial review (see Minersville School District V. Gobitis 301 U.S. 586, 60 S. Ct. 1010. 84 L. Ed. 1375, 1940). A healthy respect for democratic institutions requires no less.

Judges should have a propensity to decide cases with the aim of decreasing their power relative to the clout of officials belonging to the other branches. Courts decisions improperly or erroneously increasing their power over that of the other branches are hardly at all policed. Although, they are skeptical about the executive or legislative exercises of power, but on the question of the power of judges they are constantly the judges of their own cause, and their mistakes are very difficult to correct. Therefore, they should strive to achieve legitimate exercise of power through the practice of caution and self-abnegation. Unelected and salaried as they are, their belief about morality or sound policy should not prevail over democratic polity administered along the popular views of the citizenry generally.

Exercise of judicial review is justified only in such cases where official conduct shocks the conscience of the court or the statute in question is morally bankrupt. In all other cases, it should be the rule of adjudication of the Supreme Court to make a good faith effort to effectuate legislation regardless of their agreement or disagreement with specific policies. Their only duty is to add anything from their own side. The parliament must not be interfered with by courts of law in such measures which the government brings for reconstruction, development and social reform in the country.

A developing country like Nepal needs many Acts and Regulations to maintain industrial peace, prevent interference with public safety, or public order, maintenance of supplies and services essential to the life of community, or of employment. It should not thwart, even occasionally, the social and economic policies introduced to regenerate our profile obsessed with a felling of frustration in the country by its conservative approach based on out of date ideas. Whether marginal improvements or policies, they must come from the responsible branches of government, not from the court. In the same spirit, the court should not sit in judgment of the motives or wisdom of the governmental policy nor should it hold a statute invalid because it is deemed to be unwise or undemocratic by their standard.

Since there are virtually no instruments in the hands of other branches of the state to control the powerful (but unbridled) Supreme Court it is advisable that they evolve a self-imposed discipline in deciding cases without permitting themselves to indulge their own personal views or ideas in judicial law making. Once they depart from strict adherence to statute or governmental policy in favour of progressive or new social policies of their own choice, they cease to exercise restraint expected of a powerful court in the scheme of structural division of powers. This rule of self-restraint plays a significant role in tempering the judgment of an apolitical body of fourteen old men who, in exercising the power of judicial review, sit in judgment of coordinate, elective branches of the government.

Likewise, the Supreme Court should not, pro bono publico, use its judicial power to create rights or expand remedies by way of interpretation, misinterpretation, or non-interpretation. This work suits only to the body politic. We have seen many foreign appellate and Supreme Court judges (of course, not British) lacking institutional consciousness who, through their lengthy, bloated and self-indulgent opinions craft new rights and remedies whenever possible. They view their roles in ideological terms and use their craft in articulation and enforcement of personal values, rather than the deciding of cases. What one should never forget is that the constitution of Nepal is a compromise between different ideologies and political parties and any spade-work on the part of judges to elaborate or synchronise it, is prone to be counter-productive.

In face, rampant law making by the Warren Court had antagonized many (perhaps most) Americans so much so that much of constitutional history of France has been concerned with securing the independence of executive from the judiciary because of its excesses. In the light of the fact in most societies of Western Europe including Germany adjudication has a subordinate role compared with legislation and administration. This fact is as much notable in Marxian countries as much in other to totalitarian segments. The recent phase of degeneration of the Russian revolution, I must emphasize, has also blown up the propensity of the "Road to the House" struggle of Nepalese left as a part of strategy to propagate "Naulo Janbad" a new form of communist lullaby to bullying ignorant people. It is possible that the communist groups alone, who are at the verge of demise due to the marginalization of their ideological-political baggage in terms of imminence of collapse, immiserisation, working class self-consciousness and the brutality of the existing system, will endeavour to use Supreme Court to achieve Marxist-Leninist goals. This is not just speculation.

Justice Bhagwati of the Supreme Court of India has laid down as early as 1974 that the "equality" provisions of the constitution must be read in the light of the socialist principles (see Maganlal Chhagnalal v. Municipal Corporation [Bombay (1974) 2 S.C.C. 402, 435-6]. Legitimacy and democracy of judicial review of this sort is questionable in our jurisprudence which does not treat law differentially in relation to the state and puts all legal domains under the shadow of legislature. However, ignoring this altogether another Indian justice Krishna Iyer justifies the pursuit of socialism from the bench by quoting Oscar Wilde who bluntly asserts: "moderation is a fatality: nothings succeeds like excess". And indeed this sort of law creation is nothing but an "excess".

The constitution ensures many new fundamental rights to the people which the Supreme Court does not have experience of. The right to privacy, the right to information, the right regarding religious denomination, right to form trade unions, etc. are but few examples. Even the framers of the U.S. and Indian constitution, for instance, did not think that they can afford the right to privacy. It appears nowhere on the face of their constitutions. The right has been fashioned from wholly new cloth by the activist courts so as to meet the requirement of a particular phase of socio-economic development. Not only the person, house documents, correspondence or personal information are inviolable under this guarantee in Nepal, but even the right of an individual (or corporation) to withhold himself and his protected. The soundness of legal interpretation and other propositions is best gauged, therefore, by an examination of their consequences in the context of fact. What will happen if, for example, the Supreme Court bans the government from raiding the godowns of those big merchants who are conspiring these days to create artificial shortage of food grains in the market? In principle, judicial activism can go on to any extent but the court pari passu with government must be sensitive to the problems of the little man on the street. In other words, the Supreme Court should not interpret the fundamental rights in such broad terms that reconciling the national interest with community interest, and public interest with individual interest become impossible.

However, restraintism has another dimension also. We are a liberal dimension. We do not accept any activism in ignorance of liberal values. We cannot tolerate the people and institutions which do not respect the institution of private property and individual rights. It is the inviolable "grundnorm" of the constitution. The intention here is only to stress that democracy can have more output, as the experience of Scandinavian countries shows, when more powers to the executive is granted to secure the conditions necessary for the realization of meaning full life and liberty.

The Supreme Court as the court of last resort has also been given authority to resolve public interest litigation. In other words, the constitution has expanded the concept of locus standi to include the notion of "notional injury", "public duties standing", and "class standing". The addition to this, any responsible citizen who feels concerned on a matter of public concern can acquire standing to petition Supreme Court even if he does not belong to a class, or does not suffered personal injury. It is heartening to note that the Supreme Court is not only an arbiter of private controversy but that even the public grievances will be heard. Judicial self-restraint is even more important principle here.

The court should be, first of all, conscious to see that the petitioner is acting bona fide and is not only a wayfarer, officious intervener bystander of meddlesome interloper. Secondly, public interest litigation should be permitted only when the facts are such that the conscience of the court is shocked on account of action or inaction on the part of the state. Thirdly, the government must have capacity to abide by expected judicial order. The court must sufficiently understand that it cannot substitute its policy for that of the government when the same policy is in the question. Justice Powell had aptly observed:

Relaxation of standing requirement is directly related to the expansion of judicial power and such relaxation would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government (U.S. V. Richardson 418 U.S. 166: 1974)

Disputes involving political questions, risks and constitutional confrontations might ultimately undermine its institutional integrity. These matters are best resolved by the body politic since they lack judicially discoverable and manageable standards for resolving it. These questions bear potentialities of embarrassment to the coordinate branches. Therefore, it will be appropriate if the court restrains itself on the use of judicial powers in these matters. These non-justiciable issues and judgments should properly be left to the executive or for the floor consideration so that the court as a fragile institution retains the respect of the people. If the court moves too far ahead of the body politic, it will only add to process multifarious constitutional cracks.

Even if these issues are justiciable the Supreme Court should no (generally) be involved with academic or dead controversies. Likewise, it should not decide any moot issue since it lacks the requisite correctness and adversity. The concern about concrete factual records and premature intervention is also important. The court should not hear a case unless the disputes has jelled, the issues well-defined, and the controversy has fully developed. Similar concerns do from the basis for the restraintism on rendering declaratory judgments. However, this suggestion couples with the rider that exceptions can be made of such situations where important constitutional issues are involved.

One should not mistake these arguments to mean that this author is against the system of judicial review and judicial activism. Their applications in critical historical situations have indeed saved many democracies from withering away. They are the instrument against the menace of powerful government in the system of check and balance in the absence of which democracy cannot survive. Their use, however, is justified only in exceptional situations. A judge should be critical while making judgment on where to position himself on the activism-restraint axis. It depends on the particular historical situation.

As judge Posner says, restraintism as a contingent, time- and-place-bound principle, may not always ne an absolute good, but "we surely need more of this commodity today" (Posner, Federal Courts, 211-1985). Nepal will not be doing justice to its infant constitutional democracy, if it does not acknowledge this simple fact.

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