OPINION (Spotlight Weekly)

Against Tough Odds: Judiciary Bets on Reform

Bipin Adhikari

The political parties in Nepal as elsewhere are thought essential to the development of modern democracy. They help bring politics to the people, providing an effective way for the people to participate in government. They simplify the choices available to voters, and allow voters to come together for common purposes. They also provide key links between the electoral process and the governmental process, and between the executive and legislative branches.

The attitude of political parties towards judiciary, or any constitutional functionary for that matter, also has enormous effect on the ordinary people and their faith on the constitutional process. The best course is to stop accusing or arguing and start debating.

Contesting the Judiciary?

People may disagree about what the due role of the court should be in a democracy. This is a political query, and differences between political parties are inevitable. But in a country, which has already laid down a new Constitution after settling in such differences, and which believes in constitutional supremacy as the rule of constituent power, the constitutional formulation about the judiciary needs to be honored by all political parties.

The Constitution of Nepal gives a clear guidance about what the judiciary is supposed to do or how it is supposed to go about its job. It says enough about powers of the law courts in relation to the government and the parliament or about its responsibilities in the area of constitutional interpretation. As such, any attempt by political parties to read judiciary in terms of what they want to see there, or expect it to do what they want it to do does not fit well with the democratic values the nation has subscribed to.

An important way out for the political parties to keep off from such fanciful ideas is to prevent being emotionally tied up with the ordinary activities of the law courts. Let the courts do what they are ordained to do. The parties should not feel that they are involved with the court on a day to day basis, or that they have to act as a pressure group to affect the course of judicial decision making should they feel that a particular decision of the court has gone wrong. The system has already developed rules to make the wrong right, or to initiate new policy debates to address subjects that deserve such moves.

If this Constitution speaks about the norm of the day, the parties should forget about absolutistic politburo culture, the culture of what is known as "party-knows-best." This politburo culture which treats every state functionary as inferior to the politburo has affected some parties in Nepal too much. Either the Constitution they enacted is wrong or their culture is wrong. None of the parties ever said that the Constitution is wrong. They should thus consider the possibility that, in such instances, perhaps the better path to choose is to change the culture in order to promote the system created by the Constitution. This will save the parties from falling into hypocrisy, or being seen as chameleon by those whose cause they think they are championing.

The case of Amar Lama gave the start. The Tanakpur dispute revolutionized the process. However, it was the decision of the Supreme Court on House Dissolution (No 2) case which established the convention for the future. There were series of demonstration against the Supreme Court decision. Stones were hurled at judges for their opinion. Protest letters were issued, and memorandums drawn. The media was provoked to comment on the character and personality of the judges with a deep, long-simmering anger. They were also asked to take the decision back, because one of the parties thought that the decision was erroneous. The then Chief Justice who was the principal target retired after sometime. But it is the Supreme Court and its reputation that became the final victim of the move. The right to lead demonstration against the Supreme Court became an inherent fundamental right of the political parties.

Then immediately after the House Dissolution (No 2) case was the case of impeachment against Supreme Court judges brought with the exclusive objective of destabilizing the judiciary. The CPN (UML) which considered itself as the stakeholder knew that it did not have the required majority in the House of Representatives to pass the motion. It did not care. It wanted to cash on the judiciary, and it thought it cashed along. Only the history will be able to say how much it lost in the process. But the court was not only challenged; its independence and impartiality was also questioned by crudest possible way. Judges started to fear the masses. Lawyers started to plead a case in the language of dialectical materialism. Whatever reputation the judiciary had gained since the establishment of Supreme Court in 1951 were brought to naught within a couple of weeks.

In 2000, the first year of the century, it is the recent decision of the Lalitpur Appellate Court (it being designated as Election Special Tribunal) regarding the result of recounting of votes of Nuwakot Parliamentary Constituency No-1. This decision quashed the earlier decision of Election Commission and declared RPP Vice Chairman, Dr Prakash Chandra Lohani elected instead of Mr Rajendra Shrestha of CPN (UML) who was declared as the winner before by the Election Commission. This was enough for the General Secretary of the CPN (UML) Mr Madhav Kumar Nepal to speak to the press that the court does not have "credibility." Absolutely stumped? Absolutely brilliant?

However, it is really difficult at this stage to know who has credibility in this country. Does anybody in the top echelons of power in the political parties of Nepal have as much credibility and constitutional commitment as one of these ordinary judges of the country? Of course, one of the wise younger colleagues of Mr Nepal -i.e. Mr Yuva Raj Gyawali in the Upper House - did not entertain such an approach. He thus said: " We are not questioning the credibility and efficiency of the judiciary but only the intention of a particular judge." The Speaker of the House was then asked to keep off from moving until the Supreme Court decided on it. The Speaker declined to accept. Thus, they again took the opportunity to protest at the oath taking ceremony of Dr Lohani. No doubt, as in the case of all communist parties, faith leaps into politics of CPN (UML) as well.

In a society which believes in freedom of speech and opinion, the CPN (UML) has as much right to show its difference with anybody as any most favored citizen of this country. But such a sharp and emotional style of putting forth party opinion does only show that this sort of culture comes into conflict with the notion of the rule of law, it also politicizes judiciary, weakens the morale of the judges, and help deplete the judicial hierarchy maintained by law to hear an unsatisfied party.

A couple of months back, the BBC Nepali Service interviewed three senior leaders of CPN (UML) as a part of an omnibus program on what vision they have towards their country, and how do they hope to implement their programs in a situation of declining standard of their morality, among other things. The leaders were Madhav Kumar Nepal, Khadga P Oli and Pradeep K Nepal.

General Secretary Nepal was very particular to note that it is the UML who has always stood by human rights movement in this country. Mr Oli was more moderate, but was talking aloud about the rights of the people, and the commitment of the UML regarding this. Finally, Mr Pradeep Nepal, who was also interviewed left no stone unturned to present a liberal outlook of his party. But the question here is how a political party, which is so extravagant in its attitude towards the judiciary, can promote human rights in the long run. All these leaders are intellectuals, but the trouble with their perpetual theorizing is that it is straight out of the Maoist fiasco during the Cultural Revolution.

People develop attitudes toward their political system through the process of political socialization. If this is the process of socialization, the parties will fail to create right mindsets on which we plan to sustain democracy in this country. If the major opposition party does not understand the peril of its action, how can the government understand it? The re-arrest of the person released by the Court of Appeal on June 27 by issuing habeas corpus immediately at the same court complex must be understood in this perspective. In such a situation, how the political parties of the country can assure that the rights of the people will be protected by the judiciary.

Confusion & Chaos

There are proper ways to deal with cases of judicial improprieties or mismanagement if they are real issues to be taken up. In fact, the judiciary seems to be honest to acknowledge it. An agenda for reform is already ventilated. Even in the rest of the cases, constitutional law and the court do not stand still for ever. Like all political institutions, both are responsive in the long run to changes in the world around them. This is true of our system as well. But political attempts as referred above to make the judiciary hear will not only create chaos in the society, but also derogate the ability of the court to enforce rights freely and impartially.

[Adhikari is a lawyer]