Mukti Rijal

The Supreme Court (SC) of Nepal is confronted with challenges of sifting through a plethora of cases that stem, among others, from the complexity of party conflicts. The court cases that spring from party conflicts have been numerically high during these times. The cases have originated from the tussles among the leaders especially belonging to the leftist camp. This may also be owing to the fact that leftists are prone to doctrinaire dialectics characterised by leadership tussle and contradiction on minor issues. Within one year or so, several dozen disputes bearing politico-legal implications have been taken to the SC of Nepal which have bogged down and consumed most of its time.

The apex court had to settle the two critical constitutional cases relating to dissolution of the House of the Representatives in closer succession recently. In both the cases, it reinstated the dissolved parliament invalidating the recommendation made for the new polls. In the latest case decided a month ago, the constitutional bench of the apex court has not only restored the dissolved House but also installed Nepali Congress president Sher Bahadur Deuba as prime minister of the country. The newly installed coalition government, headed by Deuba, recommended the president to issue an ordinance allegedly with intent to abet and spearhead the fragmentation of the main opposition party – CPN-UML. This ordinance has also been challenged in the SC, and it is being heard in the constitutional bench soon.

Complex cases
As the apex court is burdened with a host of intricate and complex cases one after the other, it has little time to spare for hearing other cases than the mundane political cases. Thousands of cases of different natures – civil and criminal -- have been lying pending in the SC for years as they had been adjourned due to one or other excuses. Moreover, district courts and court of appeals have also been plagued with similar problems. This has not only jammed the court docket but also caused a denial of justice to those knocking at the doorstep of the court.

To say that justice delayed is justice denied is not an exaggeration. This underlines the need to make justice prompt, accessible and affordable. But judicial and quasi-judicial agencies are not functioning in an effective way so that the ordinary people could access justice without any hitches and hassles. Judicial procedures are lengthy and time consuming. Though legal provisions prescribe the maximum duration for processing and disposal of court cases, they take several years before they are settled. As mentioned above, the clogged court houses have become the unpleasant compulsive forums instead of temples of speedy justice.

It shows clearly from our own experiences that justice administration too is not able to cope with ever-increasing burden of civil litigation. The adversarial mode of justice administration has gone to destroy relationships and harmony subsisting in the community. This had been ugly manifested in the political cases fought out in the SC recently where arguments and counter-arguments, accusation and counter-accusations had been hurled across the line of the battle. It was seen that the charges and allegations had been framed only to shift all blame and liability on the opponent.

Assessing the nature of the court battle in the type of judicial system, the countries like Nepal and India have followed, Sriram Panchu, a leading senior advocate of India who has asserted that “court pleadings show the deponent in virtuous light and opponent in demonic cast. Angels and demons are the stuff of litigation.” Similarly, Roscoe Pound, one of the most venerated figures in American jurisprudence, who had advocated fervently in favour of alternative dispute resolution, has indicted the adversarial nature of common law doctrine that has created more problems than solution in the world today.

He had remarked that common law doctrine of adversarial procedure we have adopted turns litigation into a game. According to him, "the idea that procedure must necessarily be wholly competitive tends to jeopardise the judicial administration at every point. In this adversarial environment, litigants generally find themselves following their lawyers down the path of fact reconstruction and manipulation which violate their own common sense. The litigants must learn to lay aside their own common sense, intuition about what to say and instead follow the lawyer’s reconstructed and fabricated case unswervingly."
It leads judges to feel that he or she is merely to decide the contest, as counsels and lawyers present it according to the rules of the game, not to search for truth and justice. In the same vein John Dickinson, a nineteenth century British Scholar, refers to imposition of British legal system in India which we have more or less copied in Nepal.

He criticised severely about its destructive impact and consequences. He said “In lieu of this simple and rationale mode of dispensing justice, we (English people) have given the natives (Indians) an obscure, complicated, pedantic system of English law, full of artificial technicalities which force them to have recourse to a swarm of attorneys. The course of justice - civil as well as criminal - is utterly befuddling and the natives (Indians), both high and low, are becoming more and more demoralised"

Adversarial jurisprudence
The observation quoted above shows that the justice administration system we have followed in Nepal is based on adversarial jurisprudence premised upon contest and competition. It not only makes difficult for judges to conclude the cases through ascertainment of truth as the parties attempt to justify one's own position through facts fabrication but also furthers competition, antagonism and confrontation in the society. There is, therefore, a compelling need to reform the justice administration process not only to make it effective and efficient but also provide reorientation to ensure that it contributes for collaboration and harmony in the society in lieu of contest and competition.

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.  rijalmukti@gmail.com)