Print Edition - 2018-02-15 | Oped
There is no excuse
- The government has been making a mockery of justice by disregarding court orders
Feb 15, 2018-
Public interest litigation (PIL) is the last resort for people who wish to implement their fundamental rights through the order of a higher judiciary. PIL is used under extraordinary jurisdiction and conferred upon a higher level of the judiciary by the constitution. This jurisdiction is exercised by the High Court or Supreme Court, and in Nepal, to some extent, the District Court too. This jurisdiction is intended to provide justice to the people when there is no law at all or when the law is not strong enough to implement fundamental rights. This jurisdiction was vested in the Supreme Court by the Constitution of the Kingdom of Nepal 1990 and the Interim Constitution of 2007, and has been continued by the newly enacted Constitution of Nepal 2015. If such an order is not implemented by the government or the concerned authority of the government, where will the people go? The judiciary is their last hope to get justice.
An analysis of the PIL filed at the Supreme Court between 1990 and 2016 shows that the government does not care about the provision of justice, as in the off chance that justice is provided, it has no value at all. This has been a mockery of justice. The Supreme Court issued 314 orders during this period which the government was supposed to take into consideration and implement. These orders have been classified into four sub-categories: One, implemented mandamus orders; two, mandamus orders which are in the process of being implemented or have not been implemented till date; three, implemented directive orders; and four, directive orders which are in the process of being implemented or have not been implemented.
Out of the 314 orders issued by the Supreme Court, 105 fall under the mandamus category, and it is mandatory for the government or the concerned authorities to implement them. The government cannot make excuses like lack of resources, ongoing conflict, transitional stage, political instability or technical problems. If the orders are not implemented, it becomes a case of contempt of court. However, the government has implemented only 34 cases till date, which means that only 32.38 percent of the orders have been implemented.
Similarly, the Supreme Court issued 209 orders which fall under the category of directive orders. Directive orders are not mandatory for implementation as per Article 25 of the constitution. But this does not mean that the government can neglect them. The government cannot throw them in the dustbin. Out of the 209 directive orders, only 68, or 32.53 percent, have been implemented till date. Meanwhile, 141 directive orders are either in the process of implementation or have not been implemented. This means that the government has not implemented a majority of the directive orders for no reason.
In sum, only 102 out of the 314 mandamus and directive orders have been
implemented. A majority of the orders, or 65.51 percent, have been left unimplemented. This gives a picture that during the 25-year period, 65.51 percent of the people were waiting for justice. If anyone asks about the reasons behind the failure to implement these orders, there will be no answer from the government. If there is an answer at all, it will be an excuse citing the lack of resources, ongoing
conflict in the country, political instability or technical reasons which is complete nonsense for a democratic country.
The state cannot get off by providing these nonsensical reasons. This is just mockery of the rule of law and human rights.
Anyone can ask the judiciary these questions: Who is responsible for these violations of court orders? What has the judiciary been doing about it? If an ordinary person does not follow the order of the judiciary, it becomes contempt of court, but what about the government or its institutions? Has any responsible person of the government or its institutions been charged with contempt of court during these 25 years for not implementing these orders? The judiciary may not have any answers to these questions. It takes action against weak and weaponless people, not against powerful and rich people. Is the judiciary just for issuing orders or does it also have the responsibility to look into its unimplemented orders? Can such an attitude of the judiciary revive its lost image? Not at all. It will only create cynicism towards the judiciary.
The honourable justices of the Supreme Court should also not forget the recent case of the Indian judiciary where four senior judges wrote a letter to the Chief Justice of India Dipak Misra about his unethical activities. They requested him to correct them; and when they did not get a proper response, they called a press conference and disclosed his unethical activities to the media. As a reasonable citizen, I have only one suggestion to the judiciary: Take this issue seriously. Otherwise, there will be no justice, but only injustice to the people who want justice in the real sense. It is a violation of all democratic norms, the rule of law and human rights.
- Raut is an assistant professor at Nepal Law Campus
Published: 15-02-2018 08:03