National 1 (Spotlight Weekly)

In Transition

Chief Justice Keshab Prasad Upadhyaya leaves his successor with immense challenges and responsibilities

By KESHAB POUDEL

When he was appointed two and half years ago, few expected Chief Justice Keshab Prasad Upadhyaya would deliver so many landmark constitutional decisions. Upadhyaya, who is completing his tenure on December 5, is leaving so many challenges and responsibilities to his successor.

Supreme Court justices : Avoidable controversy

Two weeks before the leadership change in the apex court, however, a couple of controversies regarding personal issues of judges surfaced in the media. Chief Justice Upadhyaya has been embroiled in a controversy over his retirement age. The second dispute appeared when another senior judge, Krishna Jung Rayamajhi, threatened to resign following the recommendation of the senior-most judge Kedar Nath Upadhyaya for appointment as the new chief justice. The unhealthy battle between two capable judges, Kedar Nath Upadhyaya and Rayamajhi, has sent the wrong signal in the minds of the people.

Such disputes within the apex court give ammunition to those who want to destabilize the institution. With society passing through much uncertainty, the apex court needs more professional judges with the integrity to deliver critical decisions and untangle crucial national issues. The judiciary will benefit if Upadhyaya and Rayamajhi work together.

Rayamajhi, who entered the judiciary from the quota of bar, is known for his strong convictions while delivering momentous constitutional decisions. Although an official announcement is yet to be made, the Constitutional Council is said to have recommended Kedar Nath Upadhyaya, senior most judge of the Supreme Court, for appointment as chief justice.

Upadhyaya, who is also well known for his firm stand and honesty, will have to uphold the spirit of independent judiciary in the manner of his predecessors. One of the difficult tasks for the new chief justice will be to lead a united team, in the way Keshab Prasad Upadhyaya did during the last leg of his career.

"The judiciary is a set system of principles and procedures. It has its own rules and functioning prescribed by the law and constitution. The retirement of judges and appointment of new one is regular process. I don't think it will bring any changes in the judiciary," said advocate Bed Prasad Shivakoti. "Since judges are public figures and the judicial process is always open, it is usual to debate personal matters of judges and the decisions of the court publicly. The right and wrong sides of the judiciary must be debated."

Despite the controversy over the seniority of Rayamajhi and Upadhyaya, the judiciary still needs the active support of honest and talented judges like Rayamajhi in a situation when independent judiciary has a very important role to play in the protection of the rights of the individual. If personal clashes between the two jurists go out of control, it will be a great loss for the highest court of the land. In the process of institution making, Rayamajhi will be an asset to the incoming chief justice.

"There is no question of just and unjust in the apex court. When Laxman Aryal was appointed judge in the Supreme Court, superseding all the seniors, no one dared to speak. I don't see any rationale in public debates between two colleagues of same profession," said senior advocate Krishna Prasad Bhandari. "It is unfortunate to see the debate on such a petty matter, as both are senior, talented and capable judges."

Other judges hold the view that this is no issue to be taken up in a personal manner. "I don't see any reason for Judge Rayamajhi to resign since the issue of supersedure in seniority is not a new issue. It was there for last one decade since Rayamajhi was appointed judge in the apex court," said advocate Sivakoti.

Despite some weaknesses, Keshab Prasad Upadhyaya demonstrated how individual commitment goes on to build public faith in the judiciary and its ability to influence the national fate. In his first public comment after escaping an attempt on his life, during a tour of western Nepal last year, Upadhyaya appeared unruffled and ready to return to work. He led the panel that probed the June 1, 2001 royal palace massacre at a time of grave national crisis with a remarkable sense of responsibility. Upadhyaya also led the bench in taking the landmark unanimous decision upholding the prime minister Sher Bahadur Deuba's decision to dissolve the House of Representatives earlier this year.

In the end, when they could find no fault, some people have tried to drag Chief Justice Upadhyaya into controversy over his age. "The civil service has its own system of keeping records of date of birth and there is no point in debating over the well-accepted system. It shouldn't be a matter of debate when Upadhyaya is retiring on the date prescribed on the roll sheet of the government," said advocate Bharat Raj Upreti.

"I don't know who was senior or junior in the early days, but we all have seen Kedar Nath Upadhyaya leading the bench as senior judge. If this issue existed, it should have been challenged a decade ago," Upreti said.

Regardless of who leads the court, Kedar Nath Upadhyaya and Rayamajhi have the conviction and integrity to uphold the judiciary's efficacy in terms of quality of decision. It will be unfortunate to see conflicts between the two senior judges. An atmosphere of harmony is required to make the apex court a stronger sentinel of the constitution.