System On Trial

Despite its decision to release former ministers of royal government, Supreme Court is itself on trial

By KESHAB POUDEL

After the release of three ministers of previous King's government on a decision of larger bench of Supreme Court, there were mixed reactions. Some members in ruling side termed the apex court's decision to release three ministers unfortunate and demanded the impeachment against chief justice Dilip Kumar Poudel. But some others hailed the decision as a milestone to prove the supremacy of the constitution.

The bench that made the decision comprised of Chief Justice Dilip Kumar Poudel, justice Min Bahadur Rayamajhi, justice Ram Nagina Singh, justice Anup Raj Sharma and justice Khil Raj Regmi.

With the decision, one can see clear change of roles of people. Previous oppressors of the rights of the people have a very high opinion about the court whereas the previous victims had a first shock of defeat and admonition at their height of jubilance in power.

Those who believe in rule of law hailed the court's decision as an important verdict to prove that the constitution is supreme. This is the first case decided by the Supreme Court after the declaration of House of Representatives. Although the HoR's declaration did not mention about the functioning of judiciary, even the constitutional guarantee regarding the fundamental rights of Nepalese citizens came under confusion and also whether the court can exercise the article 88.2 of the present constitution which gives court extra ordinary authority to defend the fundamental rights like individual liberty and freedom.

The division bench consisting of senior justice Kedar Giri and justice Top Bahadur Magar had earlier referred the issue of Habeas Corpus to longer and larger bench in the changed context of Proclamation of the House of Representatives.

Just a hundred days ago, a full bench of Supreme Court - which had interpreted the basis document of the law - the Constitution of Kingdom of Nepal 1990 - had declared that this is a system of the supremacy of the constitution and even the King has his role within the parameter of the constitution.

In such a series of actions, the present government had crucial test of its functioning. In the case of Habeas Corpus in the Supreme Court filed by three former minister of King's government Ramesh Nath Pandey, Shris Sumsher Rana and Nikshya Sumsher Rana, the court has retained its earlier decision that nobody can be put in prison without adequate ground. On the basis of choose and pick, five ministers of previous government including Kamal Thapa and Tanka Dhakal were put into the preventive detention order.

"By releasing the three Royal ministers who have committed crime against humanity, the judges have shown that they are sympathetic to regressive forces. A motion of impeachment should be tabled in the parliament against chief justice Dilip Kumar Poudel," demanded CPN-UML MP Jagannath Khatiwada who probably has firm belief in Leninism doctrine where the courts have to speak what the government wants them to.

A lawyer who pleaded on behalf of three petitioners hailed the decision. "The court upholds the rule of law and declared there still exists constitutional supremacy," said advocate Bal Krishna Neupane. “The extremism of King's rule and present rule do not believe in supremacy of constitution."

After two days of hearing, the full bench consisting of five judges presided by Chief justice Dilip Kumar Paudel declared that the detention of three former ministers was without sufficient grounds and, therefore, illegal.

In the last hundred days the country has gone through a great popular uprising that forced the King to reinstate the House of Representatives and to appoint a prime minister. Having confidence in the House of Representatives, the king had mentioned the road map of seven agitating parties - which want to reactivate constitution in totality. There was a well defined limit of the constitutional changes in the Royal Proclamation and the same kind of clarity was there in the road map declared by Seven Agitating Parties.

But soon after the parliament assembled, the populist pressure was there all over the country in which the leaders of the parliament proved desalinating and confused. As a result, a declaration of the parliament- which was hastily drafted went through unanimously without a single voice of dissent. The basic theme of the declaration are the following "any provision of the law and the constitution of this country shall be null and void in contravention to it (declaration)."  Even ministers of the previous parliament succumbed to populism of the street.

The plea from the government lawyers was that this House of Representatives was not the result of the constitutional process and the government accountable to it is not bound to follow those provisions, however mandatory they might be.

"As the parliament has already been declared supreme, this government is not bound to follow the present constitution. The provisions of the constitution cannot be applied anymore," said attorney general Yagya Murti Banjade.

On behalf of the petitioners, senior advocate Ganesh Raj Sharma and advocates Bishnu Bhattarai and Bal Krishna Neupane pleaded that there is no adequate evidence to put them in prison.

Not only the victors and victims are in the trial in this first test case, the whole judiciary consisting of judges and lawyers were put into the trial. It is apparent that judiciary and legal system they are upholding till now have emerged again in high estimation which is one of the assuring factors to preserve the present liberal democratic system even in future days of turmoil.