Nobody should raise questions about the formation of a bench except when established with proven evidence
Some of the lawyers representing the petitioners – opposition parties – who have challenged the dissolution of the House of Representatives (HoR) for the second time on May 22 have pleaded before the five-member constitutional bench that the justices whose verdict nullified the unification of the CPN- UML and the CPN-Maoist-Centre should recuse themselves from the case. A division bench of Justices Bam Kumar Shrestha and Kumar Regmi, who is not on the constitutional bench, had nullified the NCP unification on March 7. Another three-member division bench of Chief Justice (CJ) Cholendra Shumsher Rana, Justice Tej Bahadur KC and Shrestha had heard the review case and rejected the petitioners' demand for a review of the NCP case. Senior advocate Shambhu Thapa argued on Sunday that the justices who delivered the verdict and heard the review petition on the NCP case must recuse themselves from the HoR dissolution case to avoid conflict of interest as the NCP case and HoR dissolution were correlated.
Thapa even went on to suggest that CJ Rana should go on leave. Thapa's argument is that the verdict to separate the UML and CPN-Maoist Centre had led to the present political crisis.
As the CJ of the apex court and the chief administrator of the judiciary, Rana has formed a five-member constitutional bench to hear the HoR dissolution case. It is the privilege of the CJ to form such a bench.
Nobody can raise any question about the formation of a bench except otherwise established with evidence that there could arise a conflict of interest during the hearing.
The constitution has given the CJ the right to administrate the judiciary, pass judgment, formulate policies on the judiciary and carryout monitoring of all the courts. One should be able to establish with evidence that the CJ has mala fide intention or that he may have come under undue influence from outside while constituting the bench. Even a layman can assume what sort of verdict a court may give on a given case. But nobody should raise questions on the integrity of a judge solely based on assumptions. Even the CJ, who forms a bench using his discretionary power, cannot predict what kind of verdict a bench would give as every judge is independent of others and gives his or her judgment based on the evidence presented before the bench. So, Thapa's demand that the two judges recuse themselves is unjustified.
At the same time, the lawyers representing the defendants of the HoR dissolution have also raised ethical and moral questions about some lawyers, who have represented both the petitioners and the defendants.
This is against the principle of law and their code of conduct. Their legal practitioners' licence can be revoked if their action is proved with evidence.
A full court of the Supreme Court will decide on this issue. Questions do get raised about the integrity of some judges as they are appointed to the judiciary not based on their merit, qualification and integrity, but on the basis of their party affiliation and personal connection. Raising questions over the professional integrity of judges and formation of the constitutional bench will not augur well for the independence of the judiciary, the abode of justice.
COVID cases still high
After an alarming surge in coronavirus cases for weeks that eventually led to prohibitory orders being enforced across the country, intraday COVID cases are starting to show a drop. On Sunday, 3,702 new infections were diagnosed in the country, a huge drop from the 4,487 cases recorded on Saturday. And recoveries also outnumbered fresh infections. The prohibitory orders may have played a role in bringing down the number of fresh infections, but they are still too high for any consolation. Only a strict prohibitory order will keep the virus at bay as mass immunisation of the population does not seem feasible at the moment due to a lack of vaccine doses.
Nepal cannot rely on India and China alone for its vaccine needs. With India itself looking to the West for vaccine supply, it is unlikely that it will meet Nepal's needs. For those who were vaccinated with the Covishield manufactured in India early this year, it is already past the time for their second dose. Further delay in getting the second shot could reduce the efficacy and, potentially, the lifespan of one's immunity, according to experts. Hence, diplomatic efforts must be enhanced to secure the vaccine doses from other sources.
A version of this article appears in the print on June 1, 2021, of The Himalayan Times.