Cry in the wilderness
It is a good thing that the four biggest parties on Wednesday reached an understanding on a power-sharing formula. Accordingly, the Nepali Congress will keep the post of the Prime Minister, the CPN-UML’s Subas Nembang has been elected Speaker, the NC-D’s Chitralekha Yadav is certain to become deputy speaker, and the Maoists are billed to get the single post of deputy prime minister. Similarly, the political parties have arrived at an understanding on the ratios of the distribution of cabinet portfolios. By doing this, they have displayed a sporting spirit, which will send the right signals to the general public. But the Supreme Court’s full court on the same day sent quite wrong signals about the judiciary by making a highly objectionable decision.
The Interim Constitution (IC) clearly stipulates that after its commencement all the judges — from the Chief Justice down to the district level — will have to take a fresh oath of office in accordance with a format prepared by the government, and those who refuse to do so will automatically be relieved of their job. This is another way of re-appointing those judges on condition that they swear allegiance to the IC. The new constitution and the new legislature mean a change of political system. Under these circumstances, the judges cannot carry on their official business even for a minute without being sworn in. This is a universal practice, which Nepal has followed, that nobody can assume his official role before taking an oath. But the full court did the opposite on the grounds that stopping work would affect public interests and that the spirit of the Constitution does not say that public business should be affected. The only judge who distanced himself from this unconstitutional decision was Anup Raj Sharma.
The full court’s decision reflects poorly on the country’s highest judges because they have put the cart before the horse. Spirit is invoked only when there is vagueness or ambiguity in the letter. If others followed their precedent and a case came to the court for decision, how would the judges decide? Besides, this decision has raised public doubts as to how such judges could interpret the constitution properly in the changed context. The SC judges, who took an oath under the last constitution, are now taking it under quite another, and they have also worked under three political systems, including the direct royal rule. Most of our judges are widely considered to be people for all seasons — working with equal knack and loyalty whether under a democratic or a dictatorial system. What is beyond doubt nonetheless is that nobody is above the constitution. That is why legal experts have objected to the full court’s decision. Fresh swearing-in should apply to all holders of the government posts which require oath-taking before they can carry on their official business. The judges have already wreaked the damage. In future, they should be more serious and sensitive about the implications of their decisions that are far-reaching and can set precedents.