July 28, 2006

The erosion of values and institutions in the last few months of actions send a disturbing signal

By KESHAB POUDEL

Aryal: "I will draft best constitution"

From self-proclamation of sovereign body by the House of Representatives to the exercise of arbitrary power by Rayamajhi Investigation Commission, all are not in accordance with rule of law and internationally and domestically established precedents.

In the name of mandate of Janandolan II, they are, however, justifying all of their actions as legitimate and legal. Whether the Speaker of House of Representatives and lawyer Subas Chandra Nembang or chairman of Interim Constitution Drafting Commission former judge of Supreme Court Laxman Prasad Aryal or chairman of High Level Investigation Commission and former Supreme Court judge Krishna Jung Rayamajhi or supreme court judge Anup Raj Sharma, all of them seem to be in the process of destroying democratic vales and institutions.

All democratic values and institutions based upon that are systematically being destroyed in Nepal . Surprisingly, those political forces, which have a long history of preaching and professing higher ideals of democracy, rule of law and tolerant society, are appearing instrumental to go against those very ideals.

Two retired judges Aryal and Krishna Jung Rayamajhi - who had earned a good reputation in the bench - have made a surprising metamorphosis in their new role of destroying the faith upon the present constitution. Though they hardly know the team they have to work with and they are kept completely in dark about the destination, they seem to be enjoying their new role.

In a populist race, Supreme Court judge Anup Raj Sharma, who also has a good reputation as a lawyer and judge, also jumps in without judging what the implications of his statement would be on judiciary.

In his early interview to a private Television Channel Kantipur, former judge and chairman of Interim Constitution Drafting Committee Aryal said that he will come out with “the best constitution of the world.”

After a fortnight, Aryal repeated fear against the conspiracy from unknown center. "Some one is trying to hatch conspiracy not to allow the promulgation of interim constitution," said Aryal, adding. "We will hand over the draft in scheduled time."

Now the team has been quantitatively and qualitatively changed which Aryal has to accept though he may have his own grumblings in private. The same helplessness can be seen with another retired judge Rayamajhi who has repeatedly boasted beyond the limit of the law that he will not spare anybody.

"This commission can summon anybody before it. We will summon the King if necessary for his role in oppression of Janandolan II," said Rayamajhi whose commission was set up under an executive order. "We have a mandate of Janadolan II."

Unfortunately, he has to work in a team with a person who has accepted flat slush money from the royal regime. Out of perhaps vengeance, Rayamajhi Commission humiliated former chief justice Hari Prasad Sharma by summoning him though the commission doesn't have the authority to deal with lapses in judiciary.

Rayamajhi: "I will summon everyone"

"During the Royal regime when a district court judge was summoned to appear before the high level anti-corruption commission, a country wide hue and cry was made in support of independence of judiciary. Now that sanctity of judiciary has also been violated but no institution and not a single voice has come as a force of check and balance to restrain the arbitrary exercise of power. The power prescribed by the law is being stretched beyond the limit in the name of popular mandate of the new regime of Loktantra," said a political analyst.

Investigating former chief justice Sharma, though he was controversial in several of his deed as a chief justice, was beyond the jurisdiction of this commission constituted under an executive decision. A bad precedent was, thus, established for the first time. Even a chief justice, whether he is serving or retired, will be grilled by a commission like this in future.

"I did not have any role to play. As they required my cooperation, I appeared before them," said former chief justice Hari Prasad Sharma, who has nothing to do with the oppression of Janandolan II.

By making former chief justice humble before this executive commission, a trend has been set to coerce and threaten the sitting judges also. Unfortunately, that was done by a commission headed by a retired judge of Supreme Court. Interestingly, except a journalist, all others its members are lawyers. In no democratic country and even in military rules of the past in Bangladesh and Pakistan , those kinds of things have ever happened. In the name of Loktantra, everything is possible right now in Nepal like that of Royal regime of past.

Rayamajhi commission does not spare even questioning the jurisdiction of legislature. Similarly former speaker of House of Representatives Taranath Ranabhat, who was all the time persistent in his stand for the reinstatement of the parliament defying even the Royal wishes, has been coerced to stand before the commission.

"The parliament in the past has asserted its internal autonomy as an organ of the state. That sanctity has also been violated. Just a year ago, the Supreme Court disposed of a case against the internal proceedings of the parliament in which a petition was filed making Speaker Ranabahat as a respondent. The apex court restrained itself from entering into the merit of the internal proceedings of legislature. As the highest official of the parliament, the Speaker has some privileged freedom in the past. Now that also has been violated in an absolutism of new variety," said the analyst.

All these trends have to be checked before it goes into indiscriminate exercise of the power. An action of the present, whether it is right or wrong, has already established a precedent for the future. The opinion leaders, who are in whatever capacity in the organ of the state, have to restrain themselves. Otherwise the absolute exercise of power- which they have with them- may destroy values and institutions which the country had built up within half a century by precedents after precedents and by brick after brick.

In a series of controversial debate, sitting judge of Supreme Court Sharma also joined the bandwagon of Loktantra suggesting that the interim constitution should have provisions of reappointment of all the judges and other constitutional bodies in order to strengthen the Loktantrik system. “Only those persons should be appointed in the court who have commitments towards Loktantrik system and right of people. The court is yet to be Loktantrik," said justice Sharma in a meeting of lawyers’ forum (See Kantipur July 24).

Though judge Sharma has delivered a most controversial statement, incidentally it is not against the present trend of Loktantra. Supposed if his colleague in the court exercises the same freedom but opposite to Sharma's views, will he be tolerated? Will that judge get immunity from harassment by the Rayamajhi Commission? According to legal opinion of justice Holmes of US Supreme Court, freedom of speech means freedom to that idea also which we hate. Shall this be possible in Loktantric jurisprudence?

The most controversial Kumar Mangalam doctrine in India - which said that the judges should have a political commitment to implement the socialist program in India - seems to be surfacing in Nepal .  According to justice Sharma, political commitments towards Loktantra are important rather than political impartiality.

All the trends have shown that Nepal is in the process of destroying democratic values and the institutions based upon it. These institutions were set up brick by brick in the last fifty years of modernization.