The Supreme Court has also explained the powers and jurisdiction of the court in a writ petition filed by an elected representative against the decision to relocate the municipality's center.
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The Supreme Court has delivered a historic ruling on the rights of local governments (villages and municipalities). The joint bench of the Supreme Court has delivered a ruling on whether local governments can decide to determine the center of a municipality, and if so, how to do so.
The Supreme Court has given this verdict in the dispute regarding the decision to shift the center of Gulmi's ISMA rural municipality. In the writ filed by the elected representative against the decision to shift the center of the municipality, the Supreme Court has also explained the powers and jurisdiction of the court.
The Supreme Court's verdict states that since the Constitution recognizes the central, provincial and local governments, there is also discretionary power accordingly. The court, holding that the decision to shift the center is the discretionary power of the rural municipality, said that it should not go ahead and interfere in such a decision.
Dismissing the writ petition filed against the decision to shift the center of Gulmi's ISMA rural municipality, the Supreme Court has given a detailed explanation regarding 'judicial self-restraint'.
A joint bench of Supreme Court Justices Til Prasad Shrestha and Meghraj Pokharel gave this verdict in the dispute regarding the shift of the center of Gulmi's ISMA rural municipality. After a case came to the court regarding the jurisdiction of the rural municipality, the Supreme Court has explained the jurisdiction of the executive and the limits of the court in the verdict.
‘The making and implementation of laws, policies, programs and standards is a matter within the purview of the executive or the legislature. It also involves economic and expert aspects,’ the full text of the judgment states.
‘Legally, the court cannot immediately issue an order to change the center of municipalities whether the criteria have been met or not, or whether it is appropriate or not. There is a clear legal provision as mentioned that the power to make such a decision falls within the jurisdiction of the executive. Since this is entirely the right of the executive, the court cannot take this right upon itself or issue orders or directions in such an immature situation as per the demands of the petitioners to do this or do that.’
The court has also explained how much proactivity the court will show in the matter of the executive’s jurisdiction. ‘Sometimes, limited judicial proactivity becomes inevitable to ensure justice. However, the court must always exercise awareness, caution and self-restraint to ensure that judicial proactivity does not turn into judicial adventure,’ the full text of the judgment states.
‘Judicial activism is not a directionless weapon. If this fact is ignored, constitutional disorder or anarchy may arise. Public praise or popularity should not influence a judge, nor should personal ambition or self-promotion be given space. To maintain judicial authority, it is essential to maintain the sanctity and credibility of the judicial process. The court cannot play the role of running the government.’
The judgment cites the judgments of the Supreme Court of India as precedents. ‘Judges should also know their limits and should not try to run the government. They should have decency and humility and should not behave like emperors,’ the full text says, taking the support of the Supreme Court of India’s judgment.
‘If judges start behaving like legislators or administrators, then judges will have to be elected or selected and trained like legislators or administrators, which will be counterproductive.’
The Supreme Court has also explained the principle of separation of powers regarding the decision to move the center of ISMA rural municipality.
The Supreme Court has explained that the government cannot interfere in a decision made by taking legal measures when the three tiers of the state – the executive, the legislature and the judiciary – are complementary to each other based on the principle of separation of powers. The court has concluded that where to place the center of the rural municipality is convenient for the people is a ‘political and administrative’ decision and not a ‘legal’ matter.
‘Interfering now, when a recommendation has been submitted to the Nepal government and the government of Nepal has a clear legal path to decide based on suitability, seems to be against the principle of separation of powers. The judiciary should also act within the established constitutional standards and jurisdiction,’ the full text of the judgment states.
‘The decision to move the center has been dismissed, saying that the decision to move the center is not contrary to Section 4 of the Constitution of Nepal and the Local Government Operation Act, 2074 BS.’
What was the controversy?
The village assembly had decided in 2077 BS that the center of ISMA rural municipality would have a building in Ratpokhara of Ward No. 5 and an office in Matakhani/Fediphant of Ward No. 3. Ward No. 1 chairperson Chura Bahadur Khatri and Ward No. 2 chairperson Tika Bahadur Reshmi had filed a writ petition in the Supreme Court against the decision. They claimed that the village assembly meeting was illegal, that they were not informed, and that the center was moved without following the procedure.
The court, however, has ruled that the two-thirds majority of the village assembly should be recognized. The court has called the balance made by the constitution for the independence of the judiciary a ‘constitutional trade-off’. This means that the court must also respect the jurisdiction of others to maintain its independence.
The court's legal analysis is that overturning the decision of 21 out of 30 members of the village assembly in the ISMA rural municipality center dispute on the basis of a technical error would be an insult to the 'democratic majority'. The court noted that while studying the file, it was found that 21 out of the total 30 members of the village assembly (more than two-thirds) voted in favor of the proposal to determine the center. According to Section 4 of the Local Government Operation Act, 2074, there is a provision that a two-thirds majority of the village assembly must decide on the change of center and recommend it to the Government of Nepal through the provincial government.
