Former acting chief justice Bhairav Prasad Lamsal on Monday told an inquiry panel headed by former appellate court judge Madhav Prasad Ojha that the royal regime had exerted direct or indirect pressure on the judiciary. Lamsal, now an ex-officio member of the Judicial Council, told the panel, which is investigating the alleged use of excessive force by the now discredited Royal Commission for Corruption Control (RCCC): “The RCCC had worked as if it was above the Supreme Court and it had arrested district court judge Birendra Kumar Karna”. In his defence, Lamsal claimed he had not given RCCC the permission to arrest the judge, alleging that RCCC had “fraudulently” quoted him while prosecuting judge Karna in a corruption case and that it had encroached on the Judicial Council. He also claimed that RCCC had ignored him by not sending the case to the Judicial Council.

King Gyanendra had constituted RCCC, vesting it with the combined powers of the police, the anti-corruption agency CIAA, and the Special Court. What Lamsal said is no news for people who know something about constitutional matters and who followed the political and judicial developments during that time at some length. The central question is, why did the SC, by and large, remain subservient to the illegal royal rule? The King had not changed the 1990 Constitution, what he had done he had done by interpreting articles and clauses of the Constitution in an arbitrary manner. If Lamsal, or the judiciary as a whole, had taken a firm constitutional stand then, his current statements would carry much greater weight now. The SC’s only major appreciable verdict during the royal rule was to declare RCCC null and void.

When Gen. Musharraf had taken over in Pakistan, six Supreme Court judges had refused to take an oath of allegiance to the military regime. But the Nepali judiciary saw none of such courageous judges. Instead, the then chief justice, Hari Prasad Sharma, at an international conference of judges, had openly supported the King’s unconstitutional steps and lambasted the political parties. However, during that time, the apex court had made decisions of some credit in a number of habeas corpus writ petitions involving ordinary citizens and leaders of the parliamentary parties, but not in the cases involving people alleged to have had Maoist links. But it had also fallen short of issuing search warrants in cases related to preventive detention. The SC also remained a mute spectator while RCCC encroached on the Judicial Council’s turf by arresting and prosecuting a district court judge. However, the SC’s biggest failure was to let the 1990 Constitution be derailed, failing to rise to the occasion to bring it back on the rails. Rather, it sat on a review petition seeking a restoration of the parliament for nearly four years. Now, many of the SC judges should be thankful that they will not be required to obtain a reappointment under the interim constitution, despite the kind of role they had played during the royal regime.