Ranjitkar: Independence of Judiciary in Nepal
Independence of Judiciary in Nepal
By Siddhi B. Ranjitkar
Is it not the appointment of the four pro-palace persons to the positions of temporary justices of the Supreme Court, the king's direct move to take the advantage of the Supreme Court of Nepal, making the Judicial Council and the Chief Justice the pawns of his political chessboard? Is it not that the Judicial Council and the Chief Justice have no sympathy for the independence of judiciary? Nepalis believe that the spontaneous reactions of the Nepal Bar Association (NBA) to such actions of the Judicial Council and the Chief Justice are quite natural to stop the third pillar of democracy from crumbling.
On December 28, 2005, with the recommendation of the Judicial Council and the approval of the king, Chief Justice Dilip Kumar Poudel appointed former Attorney General Pawan Kumar Ojha  , Acting Chief Judge of Appellate Court of Baglung, Tahir Ali Ansari, Acting Chief Judge of Appellate Court of Butwal, Rajendra Prasad Koirala  , and senior advocate of Biratnagar, Bipulendra Chakrawarti  to the temporary positions of justices of the Supreme Court of Nepal for a two year term. The government communiqué said that pursuant to the Constitution of Nepal of 1990, and based on their work evaluation and their notable contribution to the law and justice sector, the Judicial Council recommended those four persons for the jobs.
Nepalis believe that under pressure, the Judicial Council must have recommended the names of four individuals for the appointment to the temporary positions of the Supreme Court Justices. The Judicial Council must have selected those four names based on what they had been for supporting the unconstitutional move of the king than what they had done for the law and justice sector. They had been the active supporters of the king's undemocratic move made on February 01, 2005.
Prior to the appointment to the temporary Justice position in the Supreme Court of Nepal, Pawan Kumar Ojha was the Attorney General appointed by the King after the February-I move. Mr. Ojha had earned the reputation of being a strong supporter of the king by advocating on behalf of the king's Government in the hearing of the case of the question of constitutionality of the Royal Commission on Corruption Control (RCCC). Mr. Ojha advocated that the king being the incarnation of Hindu God, his actions couldn't be questioned in any court; the king formed the RCCC; so, it was unquestionably a constitutional one. A few days before getting an appointment to the temporary position of the Supreme Court Justice, he resigned from the post of Attorney General of Nepal.
After the February-1 putsch, using the emergency power, the king constituted the RCCC parallel to the constitutional body called Commission on Investigation into Abuse of Authority (CIAA), and mandated it with the authority of investigating corruption cases, filling them, holding hearing on them, and giving its ruling. After lifting a state of emergency in the country in June 2005, the king gave it continuity using the Article 127 of the Constitution of 1990. The king appointed individuals with non-legal backgrounds to the positions of all three members including the Chairperson of this Commission.
When the king has been enjoying full power, the independence of the Judicial Council cannot be expected, as the king could influence on the members of the Judicial Council that recommends the names for the positions of justices at the Supreme Court. Pursuant to the Article 89 of the Constitution of Nepal of 1990, the Judicial Council consists of (a) Chief Justice, ex-officio, Chairman, (b) Minister of Justice, ex-officio, Member; (c) Two Senior most Judges of the Supreme Court, ex-officio, Members; (d) One distinguish jurist to be nominated by His Majesty. In the current context, the majority of the members of the Judicial Council are expected to be pro-palace. The king's Minister for Laws, Nirnajan Thapa has a major say in the Judicial Council.
Pursuant to the Constitution, the Supreme Court of Nepal can have a maximum of fifteen permanent justices including the Chief Justice. With the recommendation of the Judicial Council and the approval of the king, the Chief Justice can appoint additional temporary justices. The Supreme Court had already twenty justices before the appointment of the four temporary justices.
In view of the Supreme Court making its ruling on the case of the RCCC on January 05, 2006, the appointment of the temporary justices has not come to the surprise of the Nepal-watchers. With the appointment of four pro-palace judges to the temporary justice positions, the balance of power must have tilted in favor of the palace making the judiciary from the independence to the pro-palace. It indicates that the independence of the Supreme Court has been in jeopardy.
Predecessor of the current Chief Justice and Former Chief Justice, Hari Prasad Sharma welcomed the undemocratic move of the king made on February 01, 2005, and put the independence of the Supreme Court of Nepal in question. The current Chief Justice had attempted to make the Supreme Court independent. However, his attempts seemed to have gone astray after the appointment of the four temporary pro-palace justices.
Appointment of the four pro-palace individuals to the justices of the Supreme Court of Nepal soiled the clean pages of the history of the Supreme Court of Nepal recorded after the people's movement in 1990. The blots on the pages of the history of the Supreme Court would go only after the re-establishment of its independence.
Once, the Vice-Chairman of the Council of Ministers, Dr. Tulsi Giri  charged the Supreme Court of Nepal with being the pro-political parties because most of the time, the Supreme Court made its independence rulings not bowing to the king's government. He even told the reporters that he had heard that the Supreme Court was going to make ruling that the RCCC was unconstitutional.
In Kathmandu, recently, a Pakistani lady human rights activist and lawyer said that Nepal had still independent judiciary unlike in Pakistan. However, the appointment of the four pro-palace people to the temporary justices of the Supreme Court of Nepal would soon change the status of the independence of judiciary in Nepal too. Certainly, the independence of judiciary has been at stake and the autocrats would have upper hands on the judiciary.
Question of the independence of the Supreme Court of Nepal was raised even when the Supreme Court denied the former Prime Minister his prerogative of dissolving the House of Representatives and calling for fresh general elections in 1995. The then Prime Minister Man Mohan Adhikari dissolved the House of Representatives and called for fresh general elections. The opposition went to the Supreme Court demanding for annulling the decisions of the Prime Minister pleading he was the Prime Minster of the minority government, and had no prerogative to dissolve the parliament and call for fresh elections. The Supreme Court made a ruling in favor of the opposition denying the Prime Minister his prerogative.
In 1991, the Prime Minister of the Interim Government could hold elections for the House of Representatives, and then anyone can logically question why the elected Prime Minister of the minority government could not go for elections. After all, Prime Minister is the Prime Minster, no matter whether s/he is of the interim government or of the minority government; the Prime Minister is suppose to enjoy the prerogative but the Supreme Court denied it.
On Monday, December 26, 2005, in a statement, Nepal Bar Association (NBA) has expressed concerns over the possible appointments of judges to the vacant positions of Justices at various courts in the country. NBA said, “It will not accept any appointment of people, who have been defending the government’s act of controlling fundamental rights guaranteed by the Constitution, and (who) have expressed their views against the jurisdiction of independent Judiciary-- to the prestigious posts of Justices or judges.” NBA also warned that the Judicial Council would be responsible for recommending such persons to the prestigious positions. The NBA's warning apparently came with a view to stopping the possible appointment of lawyers or former government attorneys to the temporary positions of justices in the Supreme Court, who have been defending the royal takeover of February 1 and the controversial Royal Commission on Corruption Control (RCCC). The statement signed by NBA General Secretary Madhav Basnet said, “Such persons cannot defend the supremacy of the constitution and defend the dignity of an independent judiciary.”
On December 29, 2005, objecting to the appointment of four pro-palace persons to the positions of the Supreme Court justices, NBA called a special meeting on Sunday, January 01, 2006. Former NBA presidents, current NBA president, senior advocates, advisors, and the chiefs and secretaries of all NBA units in the Kathmandu Valley will participate in the special NBA meeting. At the same time, human rights organizations, Federation of Nepalese Journalists and two rights workers issued a statement expressing their serious objection to the appointments of pro-palace judges and individuals to the temporary positions of the Supreme Court justices.
In a joint statement issued by human rights organizations and Federation of Nepalese Journalists (FNJ) said, "the appointments indicate that the regime is frantic following court rulings in favor of the people in public interest cases, especially habeas corpus petitions". "The appointments of supporters of the (king's) February-1-move also indicate the possibility of another undemocratic move. We have strong objection to the appointments," said the joint statement. The statement further stated that such appointments are against the constitution and independence of the judiciary and will reduce the judiciary to the appendage of the executive.
Rights activists criticized the appointments as the autocratic royal regime's ploy to interfere in the independent judiciary. Two former members of the National Human Rights Commission Sushil Pyakurel and Prof Kapil Shrestha urged the Supreme Court leadership to safeguard the supremacy of the Constitution as well as the independence of the judiciary.
On Saturday, December 31, 2005, speaking at a program held by the Amnesty International-Nepal Chapter in Kathmandu, President of the Nepal Bar Association, Shambhu Thapa said that the recent appointments of judges and individuals to the temporary positions of justices of the Supreme Court were done to bring the whole independent judicial activities into a halt. Mr. Thapa said that no organ of the state was then free from interventions; and some of the members of the Judicial Council were made to agree on the choice of the appointments previously while some of them responded to urgent calls to agree on the appointments.
The Nepal Bar Association (NBA) should continue its struggle for the independence of judiciary, and should not let anyone step on the Constitution. The NBA should challenge the appointment of the pro-palace people to the temporary positions of the Supreme Court justices, should question whether Nepalis should comply with any ruling of the Supreme Court that goes against the Constitution, and any ordinance that goes against the Constitution because such laws are not law at all.
The autocracy has been already on its deathbed. Appointment of the four pro-palace people to the justices of the Supreme Court of Nepal would certainly expedite the demise of the autocracy. They would be the royal members of the funeral procession for cremating the autocracy despite the fact that they might contribute to holding back the people's wishes for democracy for some time.
Is it not the appointment of the pro-palace people to the justices of the Supreme Court of Nepal, the king's and his henchmen's uncompromising attitude to democracy? The executive has been fully in their hands. Independence of the press has been jeopardized by the recent media ordinance of 2005. The independence of judiciary has been at stake due to the new appointments of pro-palace people to the positions of the temporary justice of the Supreme Court. Thus, the democracy has been in peril in Nepal.
In the NBA's special meeting held on Sunday, January 01, 2006, senior lawyers suggested the NBA to launch a protest against the appointment of the judges and individuals to the positions of temporary justices of the Supreme Court, as the appointees were the supporters of the royal unconstitutional takeover on February 01, 2005. Senior advocate Basudev Dhungana said that the appointment of such persons to the justices of the Supreme Court was a serious interference in the independence of the judiciary; the legal community should stop it. Former speaker and Advocate Daman Nath Dhungana said, "This must be opposed so that the autocratic government does not try such things again." Former president of the NBA, Sindhu Nath Pyakurel said that it was clear the King wanted to make the judiciary supportive to his moves. The appointment undermined the lawyers' body neglecting the recommendations of individuals made by the NBA for appointment to the justices of the Supreme Court. Senior advocates such as Ratan Lal Kanaudiya, Shyam Kharel, Khem Narayan Dhungana and advocates Kamal Narayan Das, Ram Nath Mainali and Babu Raja Joshi also opposed the appointments, and said that it was the autocracy's backdoor entry into the judiciary for curbing the latter's independence. Unit office-bearers such as Indra Lohani and Ishowari Bhattarai urged the NBA to launch strong protest programs against the appointments. However, senior advocate Sarbagya Ratna Tuladhar and Supreme Court Bar Association President Dhurba Lal Pant lectured in favor of the appointments. The central committee meeting of the NBA to be held on Monday, January 02, 2006 will decide the protest programs.
On Sunday, January 01, 2006, five days after the appointment of the four pro-palace judges and individuals to the positions of the justices of the Supreme Court, the Social Welfare Council (SWC) interpreted that the Supreme Court lifted its interim order on the implementation of the Code of Conduct for social organizations paving the way for the king's government to enforce the Code of Conduct that prevents the non-governmental organizations (NGOs) from reporting on any events in the areas they work thus denying the NGOs, the rights to provide information. Thus, the government effectively gags the non-governmental organizations among other things that prevent NGOs from being effective.
The state-run newspaper 'The Rising Nepal' said, "the lifting of the interim order on the code of conduct for social organizations on Sunday, January 01, 2006 allowed the SWC to implement the code that seeks to streamline different non-governmental organizations making their transactions transparent and at the same time enabling them to work more efficiently."
Addressing a press meet in Kathmandu, on Wednesday, January 04, 2006, civil society groups accused the SWC of ‘misinterpreting the lifting of the Supreme Court's interim order on the implementation of the Code of Conduct' for NGOs. They blamed the SWC for attempting to implement the controversial code unilaterally in a conspiratorial manner.
In their joint statement issued on Wednesday, January 04, 2006, NGO Federation of Nepal, Federation of Nationalities Nepal, Dalit NGO Federation, Women Security Pressure Group, Community Forestry Consumers’ Federation, National Federation of Disabled, Nepal and Defend Human Rights Movement, and others said that they had serious reservation about the content, rationale and the body that issued the code of conduct for the NGOs. They said that instead of scrapping it the government’s announcement to implement it was nothing but a misadventure. They announced that they would defy the controversial code.
Association of International NGOs in Nepal, UN agencies and rights groups protested against the SWC’s decision on implementing the code of conduct. The UN agencies said, "the code of conduct is something which the member organizations themselves adopt and should not be imposed from outside."
According to media reports, on Feb. 17, 2005, days after the royal takeover, the Ministry of Defense sent a letter to the Ministry of Women, Children and Social Welfare asking it for preparing a new code of conduct for the NGOs. On July 14, 2005, the government issued an ordinance amending the Social Welfare Act of 1992 and paving the way for formulating a new code of conduct for NGOs. The government also appointed pro-palace people to the vacant positions at the SWC. The new SWC team then issued the code of conduct for NGOs in November 2005.
In response to two separate writ petitions, the Supreme Court on December 23, 2005 issued an interim order to the government asking it to stay the implementation of the code of conduct for NGOs. Four days later, the Supreme Court gave continuity to its order asking the government not to implement the controversial Code of Conduct for the NGOs. The Supreme Court is expected to resume hearing on the case in the mid January 2006.
On Monday, January 02, 2006, issuing a statement, the NBA demanded the resignation of Chief Justice Dilip Kumar Poudel and one of the recent appointees, Pawan Kumar Ojha. The NBA statement said, "Since the honorable Chief Justice has been unable to protect the rights of the Nepali people under the Constitution of Nepal (of) 1990, it is our conclusion that both (the Chief Justice Poudel and the recent appointee Ojha) should no longer remain in their posts." The NBA also decided that it would exclude Chief Justice Dilip Kumar Poudel and one of the appointees, Pawan Kumar Ojha from all its functions from now on. NBA also sought the clarification why two senior most justices of Appellate Courts - Krishna Prasad Upadhyay and Dipendra Upadhyay - were not appointed to the positions of justices of the Supreme Court. The NBA was to protest against non-transparent appointments based on "secret nexus" in the future as well. It also asked all its units to enforce its decision and called for a nationwide protest meeting on Friday, January 06, 2006.
On Monday, January 02, 2006, the NBA submitted a memorandum to the Supreme Court of Nepal demanding the resignation of Chief Justice Dilip Kumar Poudel and one of the recent appointees, Pawan Kumar Ojha because of their incompetence in protecting the independence of the judiciary. In response to this memorandum of the NBA, Chief Justice Poudel called an emergency full court meeting; twenty-three justices of the Supreme Court attended the full-court meeting. The meeting condemned the NBA’s decision. The full-court meeting said that the Supreme Court was committed to protecting the rights of the people under the Constitution of Nepal of 1990 even in difficult times.
“The (full-court) meeting expressed serious concern over the NBA stance,” said a press release issued by the Acting Registrar of the apex court, Dr Ram Krishna Timalsena. Regarding the clarification sought by the NBA on not appointing two senior most judges to the temporary positions of the justices of the Supreme Court, the statement said it was the job of the Chief Justice-led Judicial Council to select judges of the apex court and that the lawyers’ body had no say in the selection procedure. “The apex court is committed to providing justice to the people at any cost and as such it is improper to oppose it,” said the statement.
On Tuesday, January 03, 2006, a notice issued by the Press Secretariat of His Majesty the King said that His Majesty the King has, in accordance with the Constitution of the Kingdom of Nepal-1990 and on the recommendation of the Judicial Council, appointed the judges of different Appellate Courts to the posts of the Chief Judge of the Appellate Courts, and also assigned other judges to their posts. Meanwhile, some Chief Judges of the Appellate Courts were also transferred to different Appellate Courts.
The king made appointments and transfers of judges at a time when the Nepal Bar Association was set to protest against the recent appointment of judges and individuals to the temporary justices of the Supreme Court, and at a time when the Election Commission was preparing to hold municipal polls.
In a separate statement, a joint communiqué, and a press release, some pro-palace advocates and lawyers condemned the NBA's decision on excluding the Chief Justice Dilip Kumar Poudel and newly appointed Justice Pawan Kumar Ojha from any its program. The state-run newspaper 'The Rising Nepal' in its issue of January 06, 2006 stated that some 25 lawyers including the members of NBA said that their attention was drawn to the NBA's decision on not involving the Chief Justice and the newly appointed Justice Ojha in its programs, and its protest on January 6, 2006 at 10:00 A.M. for an hour all over the country, and they deplored it as it was detrimental to the prestige of the independent judiciary.
Issuing a press statement after a meeting of the Judges’ Society, and having felt the concern over the irresponsible comments of the NBA on the newly-appointed individuals to the four temporary positions of the justices, the Society on Wednesday, January 04, 2006 urged the NBA to withdraw its protest programs immediately, and stated that the protests announced by the NBA went against the age-old glorious relationship between the Bar and the Bench. The Society said that the withdrawal of the protests would be instrumental to build harmonious relationship between the Bar and the Bench.
The Supreme Court had set January 05, 2006 as the final date for giving its ruling on the constitutionality of the RCCC. To the disappointment of the law abiding Nepalis, the Supreme Court deferred it to February 13, 2006. Advocates Rajib Parajuli and Santosh Mahato filed the writ petitions challenging the constitutionality of the formation and continuation of the RCCC. A special bench comprising Justices Kedar Prasad Giri, Min Bahadur Rayamajhi, Ram Nagina Singh, Anup Raj Sharma and Ram Prasad Shrestha announced the postponement of the ruling. This is a clear indication that the newly appointed justices have played their role in the business of the Supreme Court. 'Justice delayed is justice denied.'
On Friday, January 06, 2006, addressing a protest program held by NBA the valley unit, President of NBA, Shambu Thapa said that the recent appointments made to the positions of the temporary Justices of the Supreme Court gave the message that it could not protect the independence of the judiciary pursuant to the spirit of the Constitution of 1990. “The fight is not against some individuals, but the tendency of appointing justices,” said Thapa. He also said, "When we approached him (Chief Justice) on December 27, (2005) with a list of names of prospective candidates for justices as sought by him, he promised us that he was not going to appoint the judges in the near future. But the appointments were made public just a few days after we met him. He lied to us." Thapa also said that the NBA had urged the Chief Justice several times not to appoint supporters of the royal regime to the positions of the justices of the Supreme Court at this critical hour when people's fundamental rights are at risk. But the Chief Justice could not resist Law Minister Niranjan Thapa and the palace. The NBA launched the nationwide protests to preserve the independence of the judiciary and the supremacy of the constitution.
'To right the wrong, rewrite the constitution.' The appointment of four pro-palace individuals to the temporary positions of the justices of the Supreme Court of Nepal indicated that the people in power could use the Constitution of 1990 for achieving their goal through legal processes. The king could rule by decree. All these recent developments made Nepalis to think about the remedy for all these evils is to go for the elections for a Constituent Assembly and formulate a new people's constitution.
1. While pleading on behalf of the government for the controversial case of Royal Commission on Corruption Control (RCCC), Mr. Ojha made the irrational statement that all the orders issued by the king are constitutional, as the king is the incarnation of Hindu God. Mr. Ojha also said that the apex court in Pakistan had passed a verdict in favor of President Pervez Musharraf in the latter's bid to amend the Constitution and asked the Supreme Court to pass a similar verdict in the case of RCCC. Could a person such as Mr. Ojha delivering an irrational statement defend the king's unconstitutional action deliver justice to the people? Mr. Ojha was also the principal legal adviser to the king
After taking the oath of office and secrecy following his appointment to the temporary justice of the Supreme Court, Mr. Ojha said that he would work under the Constitution of 1990; and criticizing him for his previous duty of the Attorney General would be of no relevance. Talking to journalists, Mr. Ojha said, "Now, my position has changed and be assured that I will work under the Constitution.” When asked how he will assure the NBA, which is opposing his appointment, Ojha said, “My previous duty was to defend the government but now I will work as a justice of the Supreme Court to provide justice to the people. Be watchful, whatever I do in the future.
2. The Supreme Court reversed the decision made by Koirala, as an appellate court judge, on a Gold Quest scandal. He had acquitted the main accused Filipino national, who immediately fled the county. The Judicial Council rejected the names of both Koirala and Ali for recommending them for appointing to the temporary positions of the justices in the past. According to the source, Law Minister Niranjan Thapa imposed both these names this time.
3. Biratnagar-based Senior Advocate Chakrabarti is the close relative of king-nominated regional administrator, Rabindra Chakrabarti.
4. He had been non-resident Nepali for 25 years, and had changed his faith; his citizenship is in question.