Sitting in judgement
The Nepal Bar Association (NBA) and the Supreme Court are now locked in an avoidable battle. The Supreme Court had overreacted to a statement made by NBA president Bishwo Kanta Mainali at a function organised by SC Bar Association and attended by Chief Justice Kedar Prasad Giri as chief guest the other day, by barring Mainali, a senior advocate, from pleading in any court in Nepal for six months. This part of Mainali’s speech drew the judges’ wrath: In order to check the corruption that takes place in the judiciary, there needs to be in place an effective mechanism for bringing corrupt judges within the scope of prosecuting them, otherwise the post of a judge will be tantamount to a licence for corruption.’ A number of judges lost their cool over this remark. If the matter had rested at that, there would have been no problem. But the judges’ extreme step complicated matters, in the process raising important questions about the judiciary, justice, and the citizen’s right to criticise wrong practices among judges.
By acting against Mainali, the judges have sent out a general warning. It implies that if the SC can become so hard on no less a person than the NBA president, any other person who may dare criticise the judges and the courts will do it at their own peril. Mainali’s remarks do not fall within the category of contempt of court or libel, because he has not singled out any particular judge, or even said that every judge is corrupt. He was seeking just to dramatise the message he was conveying: an effective mechanism for prosecuting a judge for corruption is sorely needed, because an impunity-like situation leads to rampant corruption. The judiciary is not above criticism. It is there to provide speedy, impartial and competent justice to the citizens. Therefore, everybody has the right to criticise the judiciary and the judges. However, for good reasons, nobody can accuse any particular judge of corruption in the discharge of his official duty unless they have solid proof.
That there is considerable corruption in the judiciary, as in other organs of the state, has been admitted even by a succession of CJs and judges, including CJ Giri. When they sit in judgement on a case that involves them as a party to the dispute in some way, the judges should be doubly careful, lest decisions, particularly those that appear controversial like the one in question, should draw public allegations of partisanship. And this is likely to lower the dignity and reputation of the judges in general. The current Bar-Bench showdown has not been without its adverse impact on the way the public may look upon the judiciary. Both sides should start a dialogue to resolve the dispute amicably, and the full court should review its decision. It should not have allowed room for allegations that the court had denied Mainali natural justice. But even more important is the need to guarantee that every citizen can criticise the prevalence of corruption in any government agency, as long as it does not amount to libel, the judiciary not excluded. Any organ of the state or any body of professionals or holders of government posts should earn public respect through their deeds. They can never make up for the lack of it by wielding the stick.