NATIONAL 1 (Spotlight Weekly)]

Who Judges The Judges?

The pronouncements of an apex court justice sparks a new round of controversy

By KESHAB POUDEL

A day after Supreme Court Chief Justice Keshab Prasad Upadhyaya declared that judges cannot take part in debates on public and controversial issues, his colleague on the bench, Justice Laxman Prasad Aryal, on December 10 criticized the role of the government on human rights issues.

Justice Aryal's statement came just a few days after he participated in a meeting organized by CPN-UML on constitutional amendment, where his remarks had sparked a controversy.

CJ Upadhyaya (left) justice Aryal : Legal wrangle

When a Supreme Court justice, who is expected to maintain neutrality in word and deed, takes part in discussions of a highly political nature, public controversy is inevitable.

Justice Aryal's participation in the CPN-UML-organized debate on constitutional amendment prompted the obvious question: Is such conduct in accordance with the code of conduct for justices?

The code of conduct prepared by the Supreme Court prohibits the participation of justices and judges in activities organized by political parties and those involving public issues.

Clause 18 of the Code of Conduct for Justices 1998 says a justice should not take part in debates on cases under consideration in the court or those of a political or other nature that may come to the court for legal interpretation.

If the code specifically barred him from attending such activities and making such remarks, what prompted Justice Aryal to do precisely that?

"It is simply his temptation to participate in the debates. Justice Aryal always projects himself as a public figure rather than a justice of the apex court," a lawyer said on condition of anonymity.

Justice Aryal, who was a member of the commission that drafted the present constitution, is said to be interested in constitutional debates. That may have prompted him to criticize the government for violating human rights, the lawyer said.

Another lawyer, also insisting that he not be named, said, "Justices should not be involved in public debates because they are guarded by contempt of court from any kind of public controversy," he said.

"He is exceeding his limit. How could a justice make such remarks in a forum provided by a political party. A justice must act within limits laid down by his oath."

Others defended Justice Aryal's conduct. "The Code of Conduct allows justices to address public meetings. As a citizen, Justice Aryal is free to speak what he likes," said another lawyer.

Advancing the argument that a justice cannot express his will as long as he holds a public position, the lawyer asked: "How can he speak in a program organized by a political party?"

"As a justice I can speak whatever I like," Aryal said in defense of his remarks.

Till the writing of this story, no democratic and leftist lawyer had raised the issue publicly whether Justice Aryal's actions were against the spirit of code of conduct or not.

The reluctance of lawyers is understandable. Justice Aryal was a member of Constitution Recommendation Commission as a nominee of democratic camp and he addressed a program organized by the CPN-UML.

Addressing a meeting of lawyers in Rajbiraj, Chief Justice Upadhyaya cautioned justices and judges not to go public with their views on controversial issues.

"The justices who take their oath on the constitution should work under constitutional practices. Their code of conduct does not allow them to reply to each and every controversy regarding their decisions. Although judges have the power to perform judicial duties, they are unable to reply to such public comments," said Chief Justice Upadhyaya said. (See Gorkhapatra December 10)

Some said the participation of a justice in issues and activities of public importance is natural as long they do not represent a conflict of interest. They say the issue of constitutional amendment does not concern Supreme Court justices, who are instruments of the existing constitutional order.