Gold Coast speech The Chief Justice is in the dock

Bijay Aryal

The Chief Justice lied by saying that the Supreme Court was admitting writs on non-suspended rights.

Even those who had been giving the judiciary the benefit of the doubt regarding its role in derailing the Constitution may now have second thoughts after what Chief Justice Hari Prasad Sharma spoke before the chief justices of 31 countries of the Asia-Pacific at Gold Coast, Australia, on March 20. Chief Justice Sharma was at pains to support the February 1 Royal takeover, the emergency and everything the King has done, while he has blamed the political parties for all that has gone wrong in the country. It is doubtful that the eminent chief justices were converted by their Nepali counterpart’s one-sided politically motivated presentation of the situation in Nepal. But it has probably won him some extra points in the Royal government’s books.

His political activist’s role is the whole problem with his speech. According to Sharma, the multiparty era was ‘unrewarding’ for ‘political stability, transparency and good governance’, and the “greed for power, factionalism, bad governance and corruption, which peaked during the last 14 years, watered the plant of terrorism”. Terming the Maoists terrorists, he throws some light on some of their excesses. But he fails to take note of the excesses committed by the other side. In line with the Royal proclamation, Sharma states, “For years, while the Maoist terrorists were ruling the roost in the villages and remote areas, the government and political parties in Kathmandu were busy with their power games to grab or hold the elusive chair of the prime minister”. Though admonished by the King, the parties neglected to hold the elections, he says and goes on to add that they allowed their ‘parochial and partisan’ interests to override ‘national interests’ instead of evolving a ‘consensus’ on national issues, particularly in dealing with the Maoist problem. He repeats the arguments given in the Royal proclamation to explain why the King had to act.

The Chief Justice, who has sworn to the Constitution, favours bending it by stating that the traditional balances among the judiciary, the legislature and the executive are ‘sometimes reconfigured’ at extraordinary times. And he recommends an approach for the judiciary of a “respectful deference to executive wisdom’. By appealing to the outside world to help fight ‘terrorism’, the Chief Justice tries to do something that the executive branch has failed to do so far. As if that were not enough, he even made a false statement of a serious nature when he said that the Supreme Court was admitting writs on non-suspended rights. The fact was that the court had refused even writs on non-suspended rights for two months, including that day. In Kathmandu, Sharma had publicly remarked that the question of non-suspended rights was a political one.

The Chief Justice also held the political parties responsible for dissolving the local and national elective bodies, thus opening the ‘unrepresentative and unaccountable route to power’ and trying to ‘perpetuate’ it. But he was silent on the judiciary’s failure to prevent the derailment of the Constitution when the matter came before it for decision. By an unprecedented unanimous vote, a full Supreme Court bench, including Sharma, upheld the dissolution of the Lower House on the ground that it was the Prime Minister’s prerogative and elections could be held even during the state of emergency. Moreover, he has failed to explain why he has been sitting on a review petition seeking the restoration of the Lower House—it has been pending for over two and a half years. Even a schoolboy can confidently say that this case deserved the apex court’s highest priority. Sadly, to make matters worse, Sharma made a public remark on a sub judice case that the House could not be restored. Perhaps the Chief Justice has kept open an escape route for the executive in case of emergency.

Every citizen has a right to take sides and express opinion on any political question. But not the judges. The point at issue is not whether what the Chief Justice said was right or wrong, but whe-ther a judge can make a speech or a statement in the manner of a politician. He has caused irreparable damage to the judiciary. No other Chief Justice has caused damaged as serious during his entire tenure as Sharma has done in just two and a half months. So how can one expect justice from a judiciary headed by such a man? All the more so in cases in which the executive has a special interest — as in the writ seeking a court order challenging the constitutionality of the Royal Commission on Corruption Control, or when the case relates to the confrontation between the opposition and the government, or when, for example, arrested Maoists are brought before the court. But, sadly, he has no qualms, as he says he is ‘not perturbed’ by the criticism, implying a refusal to resign, which is the minimum he could do to control the damage he has caused.

With Sharma at its head, the judiciary has been reduced to an appendage of the executive branch. Lobbyists at the current UN human rights conference in Geneva cited the lack of independence of the Nepali judiciary as one of the reasons why a resolution under Item 9 should be passed against Nepal. At present, the executive is, in effect, three rolled into one—it has already been acting as the legislature through ordinances, and now it has the judiciary at its beck and call. Still, we have multiparty democracy and constitutional monarchy!