Trials And Turmoil

Chief Justice of the Supreme Court Keshab Prasad Upadhyaya has exhibited courage and sensitivity during turbulent times

By KESHAB POUDEL

Chief Justice Keshab Prasad Upadhyaya approaches knotty legal and constitutional issues with his colleagues, lawyers and other professionals, with an open mind and earnest concentration. Although he is at the top of the country's apex court, Upadhyaya brings an unassuming demeanor and frankness in his dealings.

In the one and half years he has been chief justice, Upadhyaya has encountered moments of trial and turmoil while grappling with vexing constitutional questions. His personal life has been no less traumatic. He had a narrow escape in Surkhet last year when his car was trapped in a Maoist ambush. After that, Upadhyaya was entrusted with leading a high-level committee to investigate matters related to the Royal Palace massacre.

Upadhyaya is retiring at the end of November when he reaches the mandatory age limit of 65 years. During his three decades in the judiciary, he has established a reputation among colleagues and acquaintances for being easily accessible and comfortable to talk to.

As chief justice, Upadhyaya has headed benches hearing petitions on a variety of questions having far-reaching consequences for Nepal's democratic polity. Even after narrowly escaping a major attempt on his life, Upadhyaya chose not to talk too much about the incident and instead reaffirmed his commitment to his profession.

Whatever situation has he faced in life, Upadhyaya has striven to maintain equipoise. As a human being, he is not above personal weaknesses. But Upadhyaya's unpretentious behavior and simplicity underscore his identity as a judge of great sense.

In a traditional society like ours, which is based on arbitrariness, leading a modern judicial institution is not an easy task. Upadhyaya is the fifth chief justice following the promulgation of the Constitution of Nepal 1990. For a person who grew up in a lower middle class family, reaching the top of the apex court itself is a matter of great achievement. More importantly, for Upadhyaya, it has been an opportunity to contribute to the strengthening of the rule of law that underpins an open and pluralistic system.

In some major constitutional and other cases, Upadhyaya has checked the extra-judicial role of the executive and legislature. But in other cases, his decisions have added to the ambiguity. Had he interpreted the role of the Attorney-General and the Commission on Investigation of Abuse of Authority on final prosecutorial authority, the country would not have had to fall under the perennial shadow of unaccountable bodies. Had the court interpreted more assertively some of the key issues governing bail, no state authority would have been able to haul common citizens in prison by demanding huge sums in bonds.

Despite such weaknesses, Upadhyaya's performance in other cases has won him the hearts of many people. At a time when key institutions of the state have been facing a crisis of confidence, Chief Justice Upadhyaya's efforts to strengthen public trust in the judiciary has been commendable.

According to the Chinese leader Deng Xiao Peng, if a man is sixty percent good, he is good. There is ample room to criticize Upadhyaya, but he passes Deng's test with distinction. Upadhyaya has strictly maintained punctuality at work and wastes no time in initiating court proceedings. Whenever he heads the bench, Upadhyaya's tenacious and probing questions pave the way for profoundly sound arguments.

Upadhyaya has energy, patience and courage, an admixture that is vital to taking decisions. Having started his judicial career from a district court, it took him three decades to become the chief justice. A former journalist, Upadhyaya does not hesitate to offer sincere words of admiration where they are due.

"Upadhyaya has fulfilled his duties as chief justice," says advocate Bal Krishna Neupane, who has filed a number of important public litigation petitions in the Supreme Court over the last 12 years.

Hari Prasad Pradhan, the first chief justice of the Supreme Court, is credited with laying the foundations of a modern judiciary in Nepal. His successors have built on that legacy. The chief justice is one of the 20 judges of the Supreme Court and one of five members of the Judicial Council. Upholding the hallowed traditions of predecessors and adapting them to the realities of the times requires great persistence and fortitude. Convincing colleagues and an increasingly active legal fraternity can often prove to be a lonely battle.

Former chief justices agree that the existing system shrinks the role of chief justice merely to that of a figurehead. "The present system does not allow the chief justice to make drastic changes in the court system," said Nayan Bahadur Khatri, a former chief justice who currently serves as the chairman of the Human Rights Commission, addressing a function in memory of Shambhu Prasad Gyawali, Nepal's first attorney-general. "The hands and feet of the chief justice are tied up," Khatri said.

Amid great trial and turmoil, Upadhyaya has proved his ability to cope with every situation without losing sight of his primary responsibilities. A dispassionate assessment of Upadhyaya tenure will have to await the rigorous scrutiny of scholars and legal luminaries and the wisdom time grants. But with his simplicity and sensitivity, he has made his mark as a judge the people could trust.