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Politics of litigation

APR 14 -

Legal monopoly has caused the failure of politics in Nepal. Politics cannot decide on its own; the higher courts and technocrats determine the direction of politics. The ball of politics reaches the hands of lawyers where an unauthorised group decides the legitimacy of public fate. It seems that public interest litigation (PIL) is being used as a legal arm to keep the decision-making process at Ram Shah Path. Generally, PIL is exercised to defend the rights and pecuniary interests of the marginalised sections of society. However, the trend is vastly different in Nepal. PIL is often used by the legal elite to maintain the status quo or to isolate the marginalised sections of society. Sometimes, the tool of PIL is used, abused or misused to defame political opponents or halt progressive agendas. It has also become a subject of enjoyment for media populism with the wrong side winning.

In India, the origin and evolution of PIL can be traced to the 1970s when Indian courts exercised wide powers given to them under articles 32 and 226 of the constitution. It deals with cases to protect the fundamental rights under article 21 of the marginalised groups and sections of society who, because of poverty, illiteracy and ignorance, cannot approach the courts on issues such as wildlife, rivers, mountains, ecology, poverty, cultural rights and environment. In Sheela Barse vs State of Maharashtra, a journalist complained about custodial violence against women prisoners in Bombay and the petitioner’s letter was treated as a writ petition in which the court made an intervention. The Indian Supreme Court directive by Justice Bhandari in State of Uttaranchal vs Balwant Sing & Others case is a historical judgment that has clearly set the guidelines to exercise public interest litigation. The court directive ensures that the petitions filed for ulterior motives must be discouraged by imposing exemplary costs.

Similarly, US courts have also exercised PIL particularly related to Black Americans of African origin. The most crucial judgment of the US Supreme Court in Oliver Brown vs Board of Education of Topeka ensured that all Americans, including those of African origin, can also study in all public educational institutions of America. The use of PIL is relatively strict in England where judicial redress is available to a person aggrieved or a person who has suffered a legal grievance. The South African example is unique where PIL is exercised to “transform the society where all are granted dignity, equity and justice”. The Supreme Court of Pakistan on July 31, 2009 issued a path-breaking historical judgment to restore the independence of the judiciary which had been snatched by the previous political regime.

Nepal’s experience is different in practice and gives a message of colourful exercise of legal power. It rarely covers socio-economic and cultural agendas. Definitely, there have been some good judgments on human rights issues that received public appreciation. However, five  to seven PILs are registered daily at the Supreme Court that affect the hearing of normal civilian and criminal cases which have been pending for years. Generally, the PILs come to court on the basis of media stories which lack proper research, in-depth analysis and concrete evidence. The legal elite, who are talking about separation of powers due to the sitting chief justice’s appointment as the chairperson of the council of ministers, did not utter a single word when the government pleaded for a three-month extension of the historic Constituent Assembly (CA). Where was their theory of separation of powers? The court refused to extend the mandate of the CA which had been elected by the people’s votes.

Generally, the street, not the courts, decides the fate of society. However, in our context, the achievements attained through street movements are being blocked through the politics of litigation. The martyrdom of 52 youths took the Madhes Movement to its climax as a result of which a 22-point agreement was signed between the government of Nepal and Madhesi People’s Rights Forum. Most of the provisions signed under this agreement were challenged in the Supreme Court through public interest litigations particularly on national dress, language, inclusion in the army and citizenship.

Nepal is a unique example where revolution is diluted through litigation. Even a movement does not make a difference. The citizenship issue has been stayed for more than a decade by using the litigation tool. The court has dissolved Parliament many times in the post-1990 period. The “daura-suruwal” was declared the national dress despite the constitutional recognition of multi-culturalism. The CA’s death certificate was issued by the Supreme Court. Perhaps, the sitting chief justice’s name was proposed as the head of the council of ministers to avoid judicial intervention in the roadmap of election and to remove constitutional hurdles.

Popular political analyst CK Lal has stated that “the day when the Supreme Court declared the death of the CA was the beginning of regression which was validated by the CJ-led government later on”. The technocratic daura-suruwal-led government can cause harm to all the gains achieved in the issues of inclusion and federalism thus far. The Judicial Council (JC) appointed five justices on Thursday, but there was not a single Madhesi, Dalit or Janajati because it had set the criteria in a way that excluded the marginalised communities. Thus, the marginalised communities should cautiously wait and watch the government’s action whether it will take us on the path of election or regression.

Finally, to minimise the harm from the politics of litigation, there is enough space to learn from international experience, particularly from the Indian practice of litigation. Justice Bhandari’s judgment ensures that before entertaining a PIL, the court should ensure that it is aimed at redressing genuine public harm or public injury. He goes on to say that there should be no “personal gain, private motive or oblique political/ethnic motive behind filing a public interest litigation”. There is a popular saying that the courts are the last one to accept and internalise changes after a revolution. Otherwise, in the name of maintaining “social harmony” and “democratic values”, judicial activism will only benefit the agenda of status quoists who are conspiring to push the local elections before the CA election. These same anti-federalist forces who are hell-bent on diluting federalism and inclusion through various kinds of activism and judicial intervention have been spreading the misconception that federalism in Nepal does not ensure human rights.

Jha is an advocate at the Supreme Court

Posted on: 2013-04-15 10:04


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