‘The end cannot justify the means, for the simple and obvious reason that the means employed determine the nature of the ends produced.’ Aldous Huxley
A clarification in the beginning: The opinion expressed in the matter does not intent to undermine judicial integrity and competence.
The context
On 2nd October 2016, the Supreme Court of Nepal organized a “National Programme on Violence Against Women”. The chief guest of the program was Rt. Honourable President of Nepal and list of guests/participants included Rt. Honourable Prime minister, Rt. Honourable Chief Justice, Supreme Court Justices, head of security agencies, and other dignitaries.
The content of the program among others included a special address by the ‘acid incident’ victims Sangita Magar and Seema Basnet and felicitation of the victims of violence against women. The programme also included a play portraying violence perpetrated by state security officials against women.
The concerns
As reported by the media, Rt. Honourable President Ms Bidya Bhandari has expressed concerns over the content of the program and same has been communicated to Rt. Honourable Chief Justice. Inspector General of Police Upendra Kant Aryal left the program before closing as he concluded that the play tarnished the image of Nepal Police and it was demoralizing for the security institution. Further, justices of the Supreme Court also expressed their dissatisfaction towards the inclusion of the speech of victims’ address (whose case is sub judice in the Court) and content of the program in light of integrity of the Honourable Supreme Court.
Further, President of Nepal Bar Association, Sher Bahadur KC has commented that Supreme Court organizing program under the management of I/NGOs in presence of victims of sub judice case is dishonourable. He also stated that Nepal Bar Association will communicate its concerns in the matter before the court.
Did the Apex Court get it wrong?
Judiciary is the branch of government which administers justice according to law. The courts apply the law, and settle disputes and punish those in conflict with the law all in accordance with the prevailing law. The judiciary applies the law to factual situations and provides a just resolution for the parties as well as for society. Article 128 of the Constitution of Nepal recognizes Supreme Court as the apex judicial court/judicial institution.
The Supreme Court is recognized as a court of record. The administration of justice and interpretation of the laws is among the basic functions prescribed to and expected from the Supreme Court. The Supreme Court may inspect, supervise and give necessary directives to it and to courts, specialized courts or other judicial bodies under its jurisdiction, in matters relating to the judicial administration or management. The customary practice and constitutional prescription envision the role of the Supreme Court in judicial administration and judicial management.
Activities of the Court reflecting a form of ‘activism’ does not fall under its mandate and is actively discouraged. The Courts have an essential role that has been guided by the various statutes and regulations related to the court, including Constitution of Nepal 2015, Administration of Justice Act, 1991, Supreme Court Act, 1991, Supreme Court Regulations, 1992, Appellate Court Regulations, 1991 and District Court Regulations, 1994 and none the legislative arrangements includes activism as role of judiciary. The Supreme Court of Nepal organizing a programme in an activist institution fashion is not something that is expected from the apex court of the country.
Further, the Supreme Court organizing the program with the financial assistance of I/NGOs reflect another concern. Adequate funding of the judiciary is a key element in ensuring and safeguarding the independence of the judiciary and judges because it determines the conditions in which the courts and judges perform their functions.
The funneling of external funding in the substantive programme of the Supreme Court is not desirable as similar instances of external funding in the court in different countries have resulted in allegations against court’s integrity. The adequate funding for the activities of the court must be derived from government. The apex court using I/NGOs’ funds to organize a programme doesn’t reflect the judicial best practice. If the budget of the judiciary is inadequate, this needs to be addressed as a prime concern of judiciary’s financial independence.
When a case is sub judice, reference to the case which might influence the outcome may be open to contempt of court charges. Participation of the victims in a sub judice case in the programme organized by the Supreme Court for special address even in good faith is not a considerate act. Felicitating the victim of violence against women by the Supreme Court does reflect that nature of programme conducted by the court as an activist programme. The involvement of the Supreme Court in felicitating victims, providing space for victims to share their stories, inviting victims of sub judice case as guest speakers, and showcasing play portraying the use of violence by state security officials appears inappropriate.
The voices of victims must be heard and their struggle and stories must be brought forward but this function can and shall be carried out by I/NGOs working in the area. Had the programme been organized by an activist organization in presence of appropriate audience, it would have been appreciable. This is exactly the nature of programme I/NGOs should design and conduct among the general public, academicians, advocates, representatives of NGOs, and other stakeholders. The fact that the Supreme Court was the organizer of the programme and the audience were justices makes the program inappropriate irrespective of all the other aspects of the programme.
Humble submission
In Nepal, various organizations are working on various human rights issues including violence against women. The past experience has shown that they are competent in their activism in various forms. These organizations should be trusted by the Supreme Court in conducting activism for change. Activism programmes are important and significant in their own ways but aren’t within the scope of the judiciary.
The Honourable Court shall concern itself with justice administration and management. The core of judiciary’s role has been and shall be imparting justice. The Supreme Court of Nepal shall perform its role as envisioned in the constitution, as apex judicial institution and the guardian of the constitution. Activities of the Supreme Court marking national programme, if necessary, shall be academic and research-based rather than activism-oriented. Activities of the Supreme Court shall aim at strengthening the integrity of judiciary and capacity building of the Justices.
The program resembling I/NGOs activism shall be discouraged within the judiciary.
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Initially published in lokaantar.com on 9th October 2016.
Link: http://lokaantar.com/en/articles/humble-submission-supreme-court-nepal-please-leave-activism-activists/
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