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The
Supreme Court, Division Bench
Honourable
Justice Girish Chandra Lal
Honourable
Justice Dipak Raj Johsi
Order
067-wo-0962
Case: A writ of mandamus
Advocate
Sunil Ranjan Singh, a permanent resident of Gauri Shankar VDC Ward No-5 Sarlahi
district who is currently residing at Balkot VDC Ward No 9--------------Applicant
Vs
Prime
Minister of Nepal and Council of Ministers
Ministry
of Law, Justice and Parliamentary Affairs
Legislature
Parliament, Kathmandu------------------------ Defendants
A
brief summary of the writ petition to have been filed in this court pursuant to
Article 32 and 107 (2) of Interim Constitution of Nepal, 2007 is as follows:
I,
the applicant, am a lawyer and also a conscious citizen. Article 107 (2) of the Interim Constitution of
Nepal, 2007 has given the Supreme Court an extraordinary jurisdiction to issue writs
of habeas corpus, mandamus, certiorari, prohibition and quo warranto or any
other appropriate order in cases of public interest litigation involving legal
and constitutional issues. Although the
Interim Constitution which was promulgated in 2007, the government has, even
when the fourth year after the constitution was promulgated is to end soon, not formed a Madhesi Commission as mandated by Article
154 of the constitution thereby depriving the Madhesi people of their right to
live with dignity as stipulated in Article 12 (1) of the constitution.
The
Interim Constitution of Nepal, 2007 was promulgated on the basis of consensus
after the political change that took place in 2006. Every Article of the Constitution
has its own significance as the constitution reflected spirit of different political
parties.
Article
154 of the Interim Constitution stipulates the Government of Nepal may
constitute such commissions as may be required for the protection and promotion
of the rights and interests of various sectors including women, Dalit, indigenous
peoples, Madhesi, disabled, labours or farmers and the provisions
relating to the formation, functions, duties and powers of such commissions
shall be as determined by law.
The
Constitution incorporated this provision with the aim o f enabling such
commissions to do constructive works to protect the interests of the
economically, socially and politically marginalised class, group and ethnic
communities.
It
was due to this provision of the constitution that the government formed some
commissions including National Women Commission and Dalit Commission which are
working to protect and promote the interests of those communities.
Although the constitution clearly mentions
about the need to form a Madhesi Commission, the state has not shown any interest
to form a Madhesi commission due to which the problems of Madhesi identity,
unemployment, gender discrimination, discrimination in the allocation of
resources and means, child marriage, dowry system, domestic violence and extra
judicial killings (EJKs) have worsened in Madhes. Since the state has not
addressed these problems in time, these problems are worsening in Madhes. It is urgently needed to form a Madhesi
Commission by identifying problems that dog Madhes today.
The
Preamble of the Interim Constitution says that the state would be restructured
in a forward looking manner to end class, ethnic communities, regional and gender
related problems by respecting the people's mandate expressed in favour of
democracy, peace and progression through historical struggles and people's
movements launched by the people of Nepal at various times since before 1951 to
date.
Article
3 of the constitution stipulates that having multiethnic, multilingual, multi-religious
and multicultural
Characteristics
with common aspirations and being united by a bond of Allegiance
to national independence, integrity, national interest and Prosperity
of Nepal, all the Nepalese people collectively constitute the nation. As Madhesis living in Nepal are also Nepalis,
it is urgent to form a Madhesi Commission to address the aspirations of Madhesi
people. It is necessary to form a Madhesi Commission also to respect right to
live with dignity as guaranteed by Article 12 (1) of the constitution. Non-formation
of Madhesi commission at a time when various commissions including National
Women Commission and Dalit Commission have already been formed by the
government violate Madhesi people's
right to equality as guaranteed by Article 13 and right to social justice as
guaranteed by Article 21 of the constitution.
Therefore,
the government has discriminated against Madhesi community by not forming
Madhesi Commission as mandated by Article 154 of the Interim Constitution of
Nepal, 2007, which in effect has violated the Preamble of the constitution,
Article 12 (1), 13 and 21 of the Interim Constitution of Nepal, 2007.
Since
Madhesi communities face myriad problems, a Madhesi Commission must be formed
to address their problems, and therefore, I request the apex court to issue a writ
of mandamus and other appropriate orders in the name of Prime
Minister and Council of Ministers and Ministry of Law, Justice and
Parliamentary Affairs telling them to form a Madhesi Commission immediately by
enacting necessary law for the same. Since the issue raised in this writ is
related with the issues of public importance, I, the petitioner, have locus
standi to file the writ and since the writ is a matter of complicated
constitutional issues, I request the court to give the writ priority over other
cases.
The
court passed an order on April 19, 2011 ordering the defendants to
furnish a written reply within 15 days if they think that the court should not
issue an order as demanded by the petitioner. As far as the petitioner's demand
for an interim order is concerned, since the issue will be considered in the
final hearing, there is no need to issue an interim order now, but since the
issue appears to be a matter of public importance, the writ is accorded
priority as per rules 63 (3) (f 5) of the Supreme Court Rules, 2049 over other
cases.
The
written replies sent by the Office of the Pirme Minister and Council of
Ministers state that Article 154 of the constitution is not a mandatory
provision and therefore, the government could form such commission for the targeted
groups only if it deems necessary.
The
writ should be quashed as it has failed to mention clearly that the government
failed to do a particular work for Madhesi community and in order to do a
particular work for Madhesi community, formation of a Commission under Article
154 of the constitution is necessary. The petitioner also failed to clearly
mention what kind of government action proved to be an obstacle with regard to
the formation of a Madhesi Commission or violated the petitioner's
constitutional rights.
The
written replies submitted by the Legislature Parliament states that Article 154
of the Interim Constitution of Nepal, 2007 has not imposed any mandatory duty
on the government. The framers of the constitution incorporated this provision
with the aim of giving the executive the power to form commissions if it deemed
necessary to do so to protect and promote the interests of a particularly
community or the region by enacting relevant laws.
Women
Commission was formed as per this provision and a bill that intends to form a
National Dalit Commission is under consideration at the Parliament. No
commission, save these two commissions has been formed under this Article. This
writ should be quashed for following reasons: the government is under no
obligation to perform a duty; there are no circumstances that could validate
the issuance of a writ of mandamus and the petitioner has no reasonable ground
to name the Legislature Parliament as a defendant in the case.
Ministry of Law and Justice states in its written replies
that although the government can form a Madhesi commission under Article 154 by
enacting necessary law, it cannot be interpreted that the government is under
obligation to enact a law on the issue.
Since it is for the Legislature Parliament to decide which law should be
enacted when this issue cannot be a matter for the court to decide. Had
Madhesis found that their constitutional right guaranteed under Article 12 (1)
was violated, Article 32 and 107 should have been invoked to seek remedy but
such a situation does not exist. If the formation of Madhesi Commission is
deemed necessary, the relevant ministry can do the needful and therefore the
writ should be quashed for unnecessarily naming this ministry as one of the
defendants.
The
bench heard the arguments of Advocate
Sunil Ranjan Singh, Govinda Sharma Bandi, Surendra Kumar Mahato and Dipendra
Jha on behalf of the petitioner, who said the government had formed Women
Commission and Dalit Commission under Article 154 and these commissions have
been doing their jobs but the government has not yet formed a Madhesi Commission that concerns more than
40 per cent of the population. Article 154 was incorporated to address issues
mentioned in the Preamble of the constitution, which is a mandatory thing for the
government. If these provisions were not mandatory, they would have been
incorporated into Directive Principles of the state.
The
word "the Government of Nepal may
constitute such commissions," mentioned in the Article cannot be
interpreted as discretionary for the government.
As
there is no Madhesi Commission to certify people as Madhesis, the Public
Service Commission appears to have been facing problem. Madhes faces a number
of problems as there is no agency to identify the problems the Madhes region is
facing. Therefore, there is a need to form a Madhesi Commission which can
identify the real problems of Madhes in time and draw the attention of agencies
concerned to address those problems. Therefore, we urge the court to issue a
writ of mandamus as per the demand of the petitioner as there is a need for
Madhesi Commission to identify the problems facing Madhes and to draw the
attention of the agencies concerned to those problems.
Similarly the bench also heard the arguments
of Joint Government Attorney Kiran Paudel who pleaded on behalf of the
defendants saying the term 'may constitute such commissions,' mean that the
government can form these commissions only if it deemed necessary to do
so. He argued that since this issue is
under the government's jurisdiction, the court can not intervene into the matter.
Now the bench, after
hearing the arguments of both sides, came to a question as to whether it should
issue a writ as per the demands of the writ petitioner.
The main demands of the
petitioner is that the court should issue a writ of mandamus in the name of defendants
telling them to frame necessary law to form a Madhesi Commission to protect and
promote the interests of Madhesi community as provisioned in the Preamble, Article
3, 12 (1), 13, 21 and 154 of the Interim Constitution of Nepal, 2007.
Considering the arguments
presented in the court with regard to the demands of the petitioner, it can be
said that preamble of a constitution is an integral part of that constitution. The
objective and spirit of the constitution is reflected in the Preamble of the constitution.
It is an acceptable fact that the interpretation of the constitution should not
go against the Preamble of the constitution.
As far as the Preamble
of the Interim Constitution of Nepal, 2007 is concerned, it pledges to accomplish
the progressive restructuring of the State in order to solve the problems
existing in the country relating to class, ethnicity, region and gender. The Preamble
expresses full commitment to democratic
values and norms including the competitive multi-party democratic system of
governance, civil liberties, fundamental rights, human rights, adult franchise,
periodic elections, and complete freedom of the press, independent judiciary and
concepts of the rule of law. Article 1 of the constitution stipulates that the Constitution is the
fundamental law of Nepal and it is the duty of every person to uphold this
constitution.
Article 4 of the
constitution defines the state an independent, integrated sovereign, secular,
inclusive and federal, democratic and a republican state.
Keeping these things in
mind, the bench reaches a conclusion that there cannot be two opinions about
Nepal being a multi-ethnic, multi-religious, and multi-lingual country and it
is the duty of elected and accountable democratic government to mainstreaming all the communities by
protecting the identity and heritage of various communities and ending
discrimination against them. There is no denying that if the aforesaid things are executed, it will
strengthen our unity and also protect
our coexistence which we must not fail to do so.
It is in these contexts
that the Interim Constitution of Nepal, 2007 has guaranteed the rights of
various communities. Part 3 of the Interim Constitution of Nepal, 2007 has
provisions relating to citizens' fundamental rights and Article 13 stipulates
that all citizens will be equal before the law and nobody will be deprived of
equal protection of law. Right to equality and right against discrimination
guarantee that there will be no discrimination against citizens on grounds of
religion, colour, caste, ethnic background, gender, origin, language, political
ideology or any of these matters.
The provisio clause of
the same Article pays special attention to substantive equality through
positive discrimination saying that the provision will not prohibit the special
arrangement by law for the protection, empowerment and development of women, Dalit,
indigenous nationalities, Madhesi, farmers, workers, economically, socially and
culturally backward class, children, elderly people,, handicapped and
physically and mentally incapacitated persons.
Guaranteeing substantive equality with social justice and
ensuring good governance, restoring peace and promoting prosperity through the
rule of law is the beauty of democracy. Once these things are ensured, all people can feel that social justice is guaranteed which
helps people remain united and maintain coexistence.
In order to guarantee the aforesaid things,
Article 154 of the constitution, in order to advance
equality as per the principle of positive discrimination, stipulates: The Government
of Nepal may constitute such commissions as may be required for the protection
and promotion of the rights and interests of various sectors Including women, Dalit,
indigenous peoples, Madhesi, disabled, labours or farmers. The
provisions relating to the formation, functions, duties and powers of such commissions
shall be as determined by law.
Defendants
have argued in the written replies that the word 'may' is not a mandatory
provision. But given the provision of Article 1 of the Interim Constitution of
Nepal, 2007 which stipulates that this constitution is fundamental law and it is the duty of every person to uphold this
constitution, the Council of Ministers instead of enlivening the constitution by implementing its provisions, presented a cheap argument by terming the constitutional
provision as not mandatory which is not in conformity with the provisions of
constitution that guarantee equality and intends to establish accountable and responsible government which
are the foundation stones of a democratic government.
It is as per this constitutional provision
that the Women Commission has already been formed through National Women
Commission Act, 2006 which intends to protect and promote the rights of women.
Similarly, A Dalit Commission has also been formed for the uplift and development
of Dalits.
But
since the written replies furnished by the defendants do not show that they are
taking initiative to form a Madhesi Commission that concern more than one third
population, and since the defendants do not seem to be active in implementing a
constitutional provision that they are supposed to do so, it is the duty of
this court to deliver a verdict on the issue involving public importance and the guarantee of constitutional right under the extra ordinary jurisdiction given to the Supreme Court under Article 107
(2) of the Interim Constitution of Nepal, 2007 in order to ensure justice to
the petitioner.
In the context of Article
4 of the Interim Constitution of Nepal, 2007 describing Nepal as an
independent, indivisible, sovereign, secular,
Inclusive and federal,
democratic republican state, there can be no disputes about the need for the
Government of Nepal to make all efforts for the uplift of marginalised
communities. There can be no dispute that the government should fulfill its
duty as far as the pledge expressed in the Preamble of the constitution that
seeks to resolve class, ethnic, regional
and gender related problems that exist in society; right to freedom as stipulated
in Article 12, right to equality and right to social justice as stipulated in
Article 21 of the constitution. The written replies furnished by defendants do
not show that any significant action has been taken in this regard and the
government has not stated in the written replies its willingness to make the
country's integrity undisputable and guarantee that it has made enough to
ensure inclusiveness which is necessary in democracy. Therefore, in order to
protect Nepal's integrity and not allow the country's integrity to be
questioned by anybody, all people of the country should have guarantee of
equality, guarantee of rights and opportunities and there should also have provisions for positive
discrimination for the benefit of deprived communities as stipulated in the
provisio of Article 13 (3) of the constitution, the court reaches a conclusion
to issue a writ of mandamus in the name of defendants keeping in mind the
Article 154 of the constitution ordering the defendants to form a commission
and enact a law as per the demand of the petitioner to empower the Madhesi
community and guarantee the right to equality.
The file of the case,
after serving this order to the defendants through the Office of the Attorney
General, should be submitted to Record Branch.
Justice
Girish Chandra Lal
I agree with
this order
Justice
Dipak Raj Joshi
Bench Officer
Phanindra Parajuli
Nagendra Kalakheti
Computer operator Santosh Awal
Date: March 9, 2015
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