SEPARATION OF POWER (Special Reference to Power of Judiciary in Nepal)

      Introduction
      Power represents the ability of one person to cause another person to do what the first wishes, by whatever means.[1]It can be used as coercion when we force a person to do something s/he did not want to do, as persuasion when we convince what s/he really wishes to do, or as the construction of incentives when we make the alternative so unattractive that only one reasonable option remains. However, the entire power shouldn’t be concentrated to a single person. The concentration of entire power within single person leads to tyranny. In the case of government, being the most important component of the state should separate the power of its organs in such a way that while using one’s power, the other wouldn’t be affected or other’s functioning is not violated. But the effective co-ordination of powers lead to a sound state. Judiciary, being one of the most important organ of the government, should be provided with some power so that it could interpret laws in an autonomous way. But the power should be followed by liability so that one couldn’t misuse its power so as to raise the tyranny.

The Theory of Separation of Power

In any state the work of government becomes so wide and complex that it becomes a must that it should be differentiated on the basis of nature of work, and some power must be provided to each. This is usually done so as to secure the benefit of specialization and the location of responsibility definitely[2]. Government being the key part of the state, enjoys the ultimate authority to act on behalf of the state, make decisions which becomes mandatory for everyone to follow. In order to facilitate its smooth operation, it is divided in to specific organs with definite power vested on them. Basically, three organs are differentiated on the basis of nature of work as they have to do with 1. Enactment of making laws    2. Interpretation of those laws           3. Enforcement of these laws. So three organs namely, legislature, executive and judiciary respectively are the organs of government. The credit behind evolution of concept of separation of power largely goes to Montesquieu[3]. Theory of Separation of Powers and Check and Balance was elaborated, explained, analyzed and expanded by Montesquieu clearly. So it is called as Montesquieu Theory (The Spirit of Laws, 1748).

    The theory of separation of power states that the functions of government should be differentiated and they should be performed by distinct organs consisting of different bodies of persons so that each department should be limited[4] to its own sphere of action without encroaching upon others, and that it should be independent within that sphere. This makes the government safe for the governed. The three organs of the government should be kept apart from each other in the interest of individual liberty and the functions should be performed by different organs consisting of different bodies of persons.[5]

Talking about the significance of separation of power, Montesquieu says that-“When the legislative and executive power united in same person, there can be no liberty; If the power of judging were joined to the legislative power, the life and liberty of the subject (people) would be exposed to arbitrary control. If the power of the judging were joined to the executive, the judge might behave as an oppressor.” The concentration of power within same person results to the abuse of authority and such an organization becomes tyrannical. So there must be the decentralization of power so as to ensure the minimum of the exploitation and tyranny in the state.

Check And Balance:

The theory of separation of power comes along with the effective check and balance. Though Montesquieu and other scholars advocate on behalf of separation of power, they are not in the favor of absolute power. Their opinion is that government should be viewed as a whole and its organs should work in unison. Efficiency demands expert knowledge of the problems which face a country and responsibility means the diversion of that knowledge towards those channels which are responsive to the needs of people.[6] The organs of government should exercise some overlapping functions in some provision for some degree of co-operation between the different modes of action. This is because, if so, no one organ could become absolute and all in all. ‘Absolute powers in one place might corrupt absolutely’[7]. All the authority should exercise its power granted by law and each organ of government should be checked other organ in order to restrain the encroachments.

The purpose of check and balance is to safeguard the liberty of individual and it is obtained by stitching to the maxim that the power alone checks the abuse of power. so the intervention of a organ of government to the actions of other to a degree that doesn’t violate the spirit of the organ, should be maintained. We can take several examples: Judicial power is given to the judges of Supreme Court. The judge enjoys the sole authority in giving verdict and no one shall raise a question and his/her decision becomes law (precedent). But the same judge can be removed by the legislature by the process of impeachment or in charge of capacity or proved misbehavior.[8]

In this way, the principles of Check and Balance requires that after the main exercise has been attributed to one body, care should be taken to set up a minor participation[9] of all in all, by way of budget and impeachment, judicial review of ordinances and laws and finally pardon.[10]

Judiciary in Nepal

Nepal has the judiciary, the third organ of the Government of Nepal, as other most of the countries have. It has three steps of court namely: The Supreme Court, Appellate Courts and District Courts. The Interim Constitution of Nepal in Section 10 has declared the judiciary of Nepal as independent organ of government and enjoy the full authority of giving verdict. It includes the officers of government whose function is to apply the existing law to individual cases, interpret and enforce the law of the state.[11] The judiciary in Nepal has several responsibilities in protecting the Nepalese people from the arbitrary rule of the state as well as from the individuals. 

 Independence of Judiciary

Independent judiciary is the basic notion of Democratic countries. The democratic countries always tend to ensure the socio-economic and political rights of people. Nepal is also not apart from it and it has also accepted judiciary as the independent organ of the government from years ago. Interim Constitution 2063 of Nepal has also ensured the independent judiciary and the three steps of courts. It has ensured their own entity where no intervention can be made. Talking about the administrative functions, it has its own mode of appointment of the judges, ensures long and secure tenure, better emoluments, restricts the judges from excessive public contact etc. Besides those, the judges enjoy the ultimate authority in giving verdict.[12] The article 107(1) of the Part 10 of Judiciary, is stated as- “ The supreme court has an extra-ordinary power to declare the laws void as filed a petition in Supreme Court declaring it void on the ground of consistency with the constitution as it imposed an unreasonable restriction on the enjoyment of fundamental law, from the date of decision”. The 1^st paragraph of article 107(2)  also ensures the enforcement of other legal rights by the Supreme Court for which no remedy has been provided or it resulted inadequate. It can issue orders writs including the writs of habeas corpus, mandamus, prohibition and quo warrants.There arises no question on the verdict given by the Supreme court and it has also right to review the final orders and subjects to the condition and in the circumstances prescribed by the law (Article 109). And the verdict once given by the Supreme Court becomes law (precedent) which is the legislative function of Judiciary.[13] The Supreme Court can even intervene on the decision of the other organs of the government and other organization and individuals if their action is not supposed to be supported by legal ground of the state.[14]

Limitations of Judiciary

The Courts of Nepal, specially the supreme court has the power to decide freely relating to the affairs related to law. However, as the notion of separation of power, it is also legitimized so as to control its monopoly. There are clearly mentioned the provisions related to this. Regarding the appointment of Chief Justice of Supreme Court, the Prime Minister appoints him/her on the recommendation of the Constitutional Council (Article 103(1)). Similarly, the motion of impeachment of the Chief Justice and other judges, should be presented before Legislature Parliament on the ground that s/he is unable to perform their duties for reasons of incompetent, misbehavior, failure to discharge the duties of their office in good faith, physical and mental condition. If the two-third majority passes the resolution, s/he will cease to hold office (Article (105(2))).[15] The Article 107(2) also states that the cases regarding the political affairs don’t fall under the jurisdiction of the Supreme Courts. The Article 117(1) states that the Supreme Court shall submit its annual report to the Prime Minister and it should be approved by the legislature and the parliament.

Conclusion

Though the judiciary is declared as an independent organ by the constitution, it has found to be violated on many grounds. Many of the Nepalese people are still illiterate and most are merely conscious about the laws of Nepal. At that condition, a small group in the government is violating the norms of the constitution. There is a tendency of neglecting the entity of the judiciary and government tends to encroach and set obstacles on its functioning.[16] Sometimes the other organs of the government also violate the spirit of constitution[17].

Separation of power is the most essential principle of any state so as to protect people from tyrannical rule and to ensure the socio-economic and political rights of people. So the organs of government must be provided with some power in a definite manner but should be traced the circumstances upto which the power thus provided functions. One should invigilate others’ action but shouldn’t intervene on its smooth functioning. In the case of judiciary of Nepal, it is the hot matter among the stakeholders regarding the structure of the judiciary in the Democratic Republic Nepal. Regardless the structure, the judiciary must be free to give verdict and it should be let execute in its own way. But the rest of the organs should administer its functions so as to control its monopoly. If a democratic state like Nepal fails to give justice to its people, it would have violated the principles of human rights and rule of law. So the better way must be traced out in coming future so as to locate the concerned power to concerned authority only.

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[1] Shively, W. Philips, Power and Choice, An Introduction To Political Science, MC Graw Hill: p 6

[2] A.C Kapoor, Principles of Political Science, S. Chand and Co, New Delhi: p 470

[3] However, Aristotle, John Lock, Bodin had also explained this concept. Aristotle, in his book ‘Politics’ has mentioned three parts of government-deliberative, legislature and judicial. Similarly, John Lock made three-fold divisions of the governmental activities--Legislative, judicial and Executive. But the concept of those scholars failed to explain the concept of mutual check and balance despite though there was separation of different organs of the government.

[4] Besides being limited in enjoying the power given by the state, each of the department must be free and sovereign in their operation.

[5] Johari, J.C, Principles of Modern Political Science, :p356

[6] Kapoor, A.C, Principles of Political Science, S. Chand and Co, New Delhi: p 477

[7] Lord Acton-“Power tends to corrupt and absolute power corrupts absolutely.

[8] There is also the scopes where the judiciary can raise a question to the action of other organs: For instance, The Supreme Court of Nepal propounded a principle when the executive of Nepal started taking back 349 cases of several people in the name of political issue during the Maoist Insurgency. The principle stated that the executive doesn’t have the sole authority to do such type of activities and for taking back the cases, it must take the permission from the Supreme Court first.(Kantipur National Daily, 2065/09/18)

[9] Minor participation in the sense that the extreme check and balance of an organ to the action of other organ creates frictions and deadlocks that prevent smooth and efficient government.

[10] Johari, J.C, Principles of Modern Political Science,: p 358

[11] Laski-“the judiciary of state may be defined as the body of officials whose work consists in the resolution of complaints, whether between subjects or objects, or between state and object, that the laws of the state have been a matte of fairly common agreement among thinkers that the political power should be regarded in its nature.

[12] Article 100 of the Interim Constitution 2063 states like-‘the courts can exercise power related to justice.

[13] It would be the duty of the Nepalese Government and all the Nepalese people to act in aid of supreme court and its decisions are binding. Articles (115,116)

[14] Ibid 8

[15] The judge against whom it is proceeded by this clause, shall not be deprived to defend him/herself.

[16] Law Minister Dev Gurung and Prime Minister Puspa Kamal Dahal violated the spirit of the law and offered the resignation of Motikaji Sthapit, the member of Constitutional Council. (Nepal Samachar Patra, 2065/08/28)

[17] The privileges including the security, building etc. to the former king Gyanendra Shah was contrary to the constitution as there is not stated that no special privileges should be given to Nepalese people as Gyanendra Shah was also one of citizen of Nepal. The Supreme Court issued a show cause notice to the executive. (Nepal Samacharpatra, 2065/03/09)