January 17, 2017 12:47:46 am
Last week, Nepal’s Supreme Court settled two major cases. A three-member bench annulled the appointment of Lokman Singh Karki, chief of the anti-graft constitutional body, inferring that he lacked the necessary qualification and the “high moral character” the office called for. In another judgment, the court said that the little less than one hectare land in Kathmandu that Gyanendra Shah gave as a wedding gift to his daughter when he was the king, is a property that should belong to the “National Trust”, a body created to take over and manage property of the erstwhile royals. In both cases, the Supreme Court reversed its own judgment given a couple of years ago, citing “grave error in justice” as the reason for entertaining respective appeals. What is amazing is the speed at which justice was delivered — less than four months — when there are about 22,000 cases pending in the apex court, some for years.
Interestingly, Karki was appointed to the post nearly 45 months ago by the cabinet that was headed by the-then Supreme Court chief justice, Khilraj Regmi, on the recommendation of the heads of the four major political parties, including the current prime minister, Pushpa Kamal Dahal.
A two-member bench of the Supreme Court had dismissed a public interest litigation challenging Karki’s appointment two years ago. Another two-member bench headed by the-then chief justice, Ram Kumar Shah, had disposed off the “wedding gift” case in favour of the princess around the same time. Some civil society activists had taken to the streets, objecting to Karki’s appointment as the anti-graft head, a constitutional body, alleging that his track record as a bureaucrat was not good and that he did not have the “high moral character” the post demanded. The Supreme Court entertained a PIL recently by the same person, and found merit in his plea this time.
The fast-track judgments have raised serious questions about the fairness and impartiality of the judiciary that has now openly started recruiting judges according to their political allegiance. Although the two recent verdicts make no explicit adverse comments on the judges in the previous benches, the ground given for their review — “gross errors in judgment” — can be read as a disapproval of the judicial character and knowledge displayed by the judges who
delivered the earlier verdicts.
The Judicial Council, headed by Chief Justice Sushila Karki, met till Friday midnight to finalise the list of 80 high court judges amidst a “boycott” by two of the five members. Justice Baidhyanath Upadhyay, next to the CJ in seniority, and Ram Prasad Sitaula, who represents the Nepal Bar in the council, abstained, apparently protesting a perceived “deal” between the CJ and Maoists in the appointment of the judges. Incidentally, only three members — the chief justice, law minister and the government nominee to the council, the last two belonging to the Maoist party — approved the panel of judges drawn from the judicial service, Bar and the lower courts. Some of those selected are close relatives of prominent Nepali Congress leaders.
The current chief justice has chosen not to constitute the “constitutional bench” as mandated by the constitution, as she does not get along with the senior-most judges entitled to be on that bench, fuelling discontent within. The failure or inadequacy of the apex court has raised yet another fundamental question: Who is the judiciary accountable to? A discredited judiciary will have a far bigger impact on democracy than failing politicians.
A decade ago, by joining the peace process, the Maoists gave out the message that they will no longer pursue “totalitarian” politics. They advocated a judiciary in which judges have to be accountable to the legislature, but with their numbers declining in the second Constituent Assembly cum legislature, they gave up the demand. However, in 2012, a new political experiment, a compromise on the principle of separation of powers, was undertaken that made Khil Raj Regmi, chief justice of the Supreme Court, the prime minister as well. India, the European Union and the UN approved it.
In India’s case, it was not only the UPA government then that welcomed the decision, but Ravi Shankar Prasad, a senior Opposition leader then and a Union minister now, travelled to Kathmandu and welcomed the head of judiciary being given the additional executive responsibility. This was conveying a message that the Opposition in India concurred with key political initiatives that the Indian establishment took during the transition, including bringing the Maoists to the democratic process, 2005 onwards.
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