Supreme Court Self-Strangulates (Itself and Loktantra)

What Sushila Karki’s judicial council has done is taken matters to a new, nepotistic partisan low. I remember discussing in the late 1990s the Vishwanath mal-judgements with my father (former law minister under King Mahendra, the longest (12 years) s

Jan. 20, 2017, 5:45 p.m. Published in Magazine Issue: Vol 10. No. 11,January. 20,, 2017 Magh 07,2073)

In the early 17th Century, King Ram Shah of Gorkha established so just a rule that his legendary reputation was reflected in a popular saying across the hills: “Nyaya napaye Gorkha janu (translation: If you want justice, go to Gorkha)”. A century and a half later, the moral high ground provided by that punnya (“good karma”) greatly contributed to his descendant Prithvi Narayan Shah’s legitimacy and acceptability across the hills as he marched ahead to unify Nepal.

          Today’s New Nepal has fallen very low from those high standards, and continues to fall to the dismay of its citizens. News has just come in of the shenanigans at midnight of the 12th of January at the chief justice’s residence: eighty new judges were appointed to the different courts of the country through bhaagbanda, the “sharing of spoils” by the major political parties. The senior-most judgeof the supreme court as well as the Nepal Bar Association representative both boycotted the five-member judicial council meeting saying that the manner in which the business of this eminent body was conducted was most inappropriate. As per newspaper and TV reports, it was held outside of office hours and not at the supreme court but at the residence of the chief justice; senior Maoist leaders who were not members of the judicial council were present at the deliberations (the current law minister is a junior Maoist requiring political and administrative tutelage by his seniors); constant instructions were received from the prime minister’s quarters across the fence; and quick trips were made to the houses of other senior party oligarchs for consultations.

The net result was the selection of new judges based less on their professional qualificationsand moreon party affiliation,political apportioningand nepotism. Nepal Bar Association has registered harsh protest and decided to boycott functions of the Bench; and the Society of Government Lawyers has expressed dismay and threatened boycott as well.It must be that some of the newly appointed judges could be professionally competent; but the compromised selection process unfortunately has tainted them too, and they will be viewed less as independent judges and more as loyal party soldiers. What if an average Nepali has to seek redress from the courts against his neighbor who happens to be a party man?How is he or she to expect that the court will be fair in his case if he is not backed by a political party or a relative of the judges? In this business, it is said that perception is reality; and the perception is that of extreme party politicization of the judiciary and the loss of its moral high ground.

          Ironically, this loss has been aggravated with more democratization in Nepal; and there is a growing view that judges of the Nepali courts were more independent under the Panchayat. Indeed, the roots of the rot were sowed at the crafting of the 1990 constitution itself. The chair of the committee that drafted it, Vishwanath Upadhyay, managed to do a few things that personalized the judiciary and opened it to personal and political influence. In the constitution itself, he ensured in its terms of reference that his own elevation to the post of chief justice was assured by making sure that only someone who had been a judge in the supreme court for five years could be a chief justice. It sounds logical; however, in another contradictory provision he ensured that six months after the promulgation of the 1990 constitution, all judges would be dismissed since “they served under the just abolished Panchayat and were unqualified to be judges in the new dispensation”, and new ones would be nominated.

This raised two awkward questions that have never been answered by multiparty leaders or their parties and intellectuals. How is it that, if a Panchayat era judge was deemed to be incompetent to serve in the supreme court under a multiparty dispensation, he would, however,had to have served five years under the same Panchayat system as judge to be a chief justice in the new dispensation?The other question unanswered isthe following. After the change from Panchayat to multiparty democracy, the military, police, civil service, politicians (reincarnated as RPP) as well as village and district panchayats remained the same (only their names were changed to VDC and DDC) and continued to serve in their previous capacity. However, this constitutional provision singled out only the judges as culprits behind the Panchayat who thus had to be punished! It has now become obvious that Vishwanath did this to ensure that the ToR for chief justice would fit him and only him among potential contenders; that someone like Nepal’s most respected first chief justice Hari Prasad Pradhan could never be nominated from outside the closed guild of judges; that once elevated to chief justiceship he would dismiss all his peer whom he disliked; and he would then nominate those he liked, including most of his brothers who became judges over the last quarter of a century.

The judiciary chapter of the 1990 constitution, written by Vishwanath as chair of the committee and its subsequent sole interpreter as well when elevated as chief justice, had built into it the principle of judicial activism and supremacy. Judiciary induced calamity was soon to follow: a series of politically and personally biased landmark decisions followed which stymied the parliament as well as the political process and put the country on a disastrous path. When Prime Minister Man Mohan Adhikary recommended to the King to dissolve the parliament – the only instrument a prime minister has in a parliamentary system to tame the House – Vishwanath took a decision that not only curtailed this power of the prime minister but set in motion a period of “musical chair” coalition governments and the massive corruption of vote buying that followed.

He also interpreted Article 113(2 Gha) of the constitution on the need to garner three percent of the popular vote to be called a national party in a manner not acceptable in jurisprudence. When the breakaway faction of Janamorcha led by Baburam Bhattarai (third largest party in parliament then) filed a case asking that the Election Commission recognize it as a national party, the Vishwanath court decided against the plaintiff saying he had not received the required three percent of the votes in an election his breakaway new party had not even participated in!!How could he have? It pushed a political force already inside the parliament to go outside its peaceful politics, giving it the moral legitimacy to join the Maoist insurgency and call the parliament “a butcher’s shop where a goat’s head is displayed but dog’s meat is sold!”

A similar mistake of judicial activism was in the Tanakpurwater agreement with India which rocked the first parliament in the early 1990s. The Vishwanath court decided (correctly) against the government that the agreement was indeed a treaty that needed to go to the parliament for ratification as per Article 126. However, there was a second aspect to the case which asked that the ratification be done by a two-third majority; and here the court absconded from decision making. Instead of calling an amicus curie and taking a firm decision, it passed the ball back to the parliament asking it to decide. So far so good, but the decision also said the court would revisit the case if the parliament decided, in its judgement, wrongly. This put the case on an insolvable, what computer programmers call infinite loop that paralyzed the parliament and has left the Mahakali Treaty that was subsequently meant to solve the imbroglio in a twenty year limbo. Interestingly, the court also failed to produce a written final judgement in the celebrated Tanakpur case.

What Sushila Karki’s judicial council has done is taken matters to a new, nepotistic partisan low. I remember discussing in the late 1990s the Vishwanath mal-judgements with my father (former law minister under King Mahendra, the longest (12 years) serving attorney general of Nepal and the person who wrote the 1962 constitution as well as the reform of the Mulki Ain). He was desponded seeing the moral degradation of the court, and in a fit of flippancy to cheer him up, I remarked that it was impossible to keep the court an island of propriety when the whole body polity of the country was beginning to stink. My father, who I have never known to get angry, flew into a rare rage and scolded me saying: “You don’t understand. When other units of government make mistakes they can be corrected; when the judiciary makes mistakes, it shatters the faith of the people in it and that cannot be restored.”

I write these lines coming back from Dhulikhel attending a meeting of young civil society activists and lawyers. The harshest, and perhaps a bit unfair, comment that I heard on the new judicial council appointments was: “What did you expect from the wife of a bank robber and airplane hijacker in a country ruled by a mass murderer?!!” Agreed it is unfair to say so, but it is an indicator of how far downhill the courts have gone on the moral front not only from the near-impossible high standards of King Ram Shah, but also from that of the Panchayat.




Dipak Gyawali.JPG

Dipak Gyawali

Gyawali is Pragya (Academician) of the Nepal Academy of Science and Technology (NAST) and former minister of water resources.

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