National 2 (Spotlight Weekly)

Koirala's Reply To The Court

1. Based on newspaper reports on 16 September, 2004, about the comments I made on supreme court, the petitioners have demanded a maximum punishment for the contempt of court.

Because of the wider concern about the case the full text of the written reply of Koirala to Supreme Court in a case of contempt of court against him.

2. Notwithstanding the differences in the presentation of reports in the newspapers as mentioned by the plaintiffs, I find that there are three main aspects. (i). Criticism of the supreme court’s verdict (ii). Criticism of the king’s direct rule (iii). My determination not to appear before the Commission for Investigation of Abuse of Authority (CIAA). It is quite obvious from the petition that there has been a subtle attempt to convert the court into a platform for propaganda through a group of legal practitioners who have been pleading on behalf of a party on its own case. Otherwise, voicing the opposition against the tyrannical rule and the practice of using the CIAA as its tool would not have been presented as a case of the contempt of court. It shows the lack of even basic knowledge of law. It has come to public notice that the plaintiff, the Pro-Public, has had vested interest and involvement in various dealings with the CIAA. As such, the petition against me does not seem to be guided by the motivation to protect the honor and credibility of the supreme court. Rather, it seems to have been influenced and motivated by the tyrannical rule to be used as its tool. The court needs to be serious about the petitioners’ intention to use the case for political propaganda.

3. I believe that the previous case that I had filed and the present case against me both do reflect the country’s overall political situation. As I and the Nepali Congress that I have been leading have been engaged in an agitation against the denial of parliament and a government accountable to the parliament, authoritarian and anti-people forces have, after failing to deal with it through popular political means, have resorted to character assassination of politicians fighting for the democratic rights of the people. It is clear
that in a long series of conspiracies, the Judicial Commission for Investigation of Property (JCIP) and - based on its report - the CIAA are being used as the tool of the authoritarian rulers. It is on this backdrop that the case of contempt of court has come to the fore. In a democratic system where the sovereignty of the people is exercised on the basis of the supremacy of the parliament, no one can use the state institutions in an unaccountable and haphazard manner due to the popular checks and balances. However, the absence of democracy means the end of an accountable government and beginning of an authoritarian and unaccountable rule. The current political situation of the country has clearly shown that in a tyrannical rule, environment to live in dignity and express one's conscience does not exist. In this situation, those who want to live in dignity and want to have the rights to express their conscience should be prepared to make any sacrifice for its sake. The petitioners have demanded a maximum punishment for me claiming that I hurt the court’s prestige and honor. In claiming so, they have linked my remarks against the CIAA - which has emerged as the tool of the regression and a tyrannical rule - with the contempt against this court. The honor and prestige of this court does rest in the belief that this court does not give judgment under political influence nor does it create any political dispute. For the past two years all executive powers under the Article 35.1 of the constitution of the kingdom of Nepal have been vested in the king as there is neither a parliament that is accountable to the people nor a constitutional government that is accountable to the parliament. In the present situation when two of the three major organs of the state -the executive and the legislative - have become helpless, the supreme court has an extraordinary role to play as the guardian of the constitution. When there is no parliament and the government is not accountable to the parliament, the supreme court has an extra-ordinary responsibility to protect the citizens' rights and vis-a-vis the tyrannical powers of the executive. If it fails to fulfill its added role in the circumstances, it cannot remain immune to criticism.

4. This being a case of the contempt of court, it would not be proper or possible to make any comment or criticism. There is no forum for analysis and appeal on the verdict already given by the supreme court and it is not proper or possible for me to criticize or make comments on the merits of the order as issued by the court on 15 September, 2004. However, it is my constitutional argument that every verdict of the court should be transparent and that such verdicts can be subjected to necessary comments and criticisms or protests.

5. The manner in which the court made public its verdict on my case and the way the media asked for my immediate comments, my responses were instinctive and natural. It is not possible for me or anybody else to read the verdict in isolation of the present political situation. Since I had asked for legal remedy under the Article 88.2 of the constitution, I found the verdict to be partial and unexpected. I did not only expect the court to make the letter of the CIAA ineffective, but also raised the following questions:

i. Was the letter of CIAA based on law or not?

ii. Could the CIAA take actions on the basis of the JCIP or not?

iii. Did the petitioner need needed to present property details or not?

iii. Wasn’t there any malafide collusion between the CIAA and the HMG?

iv. Did the situation warrant the court to issue order based on the demands of the petitioner?

These questions still remain unanswered. Therefore, my critical remarks and comments were not irrelevant. As, citing some other existing petitions, the court remained undecided despite myself seeking an extraordinary remedy, my criticisms are well within the limits guaranteed by the constitution.

6. I find my opponents confused about my remarks when they charged that I somehow claimed to deserve more immunity than common people. In fact, given the violation of law by the CIAA - which has been used as a tool by the tyrannical rule - demanding unrestricted rights to it to violate the law, the petitioners themselves would stand in a hollow ground. Otherwise, they would not have considered my statement on refusing to appear before the CIAA as being contemptible when the court had asked the CIAA to apply restraint and patience in its actions.

7. Every citizen can demand the fundamental rights guaranteed by the present constitution - which came about after a long struggle - and inherent human rights to live in dignity and the rights to the freedom of expression of conscience. It is the duty of this court to provide remedy when any organ of the sate including the court encroach into the fundamental rights through violation of law or without making law. The arguments of the petitioners show that the regressive mentality and tyrannical rule - because of our past traditions - do not accept these basic rights even though the constitution guarantees the rights to live in dignity.

8. The fundamental right of freedom guaranteed under the theme that no person shall be deprived of his personal liberty except in accordance with the law had not come about all of a sudden. A prolonged democratic struggle and unprecedented sacrifice brought it about. It is every citizen’s responsibility to remain ever vigilant to protect these rights. It is ludicrous to think that demanding these universal values is somehow tantamount to asking for more immunity than common citizens.

9. Although the subject of this petition is related to the contempt of court, the inherent questions included in it clearly shows that this will end up as a case of exercising the freedom of speech and expression. In this case, a question has arisen: whether the fundamental rights of the constitution are primary or not? The precedents presented by the opponent petitioners have not shown any clear basis regarding the defense of the freedom of expression and publication. The main basis of my defense in this case is my freedom of speech and freedom of expression as guaranteed by the constitution. The constitutional provision pertaining to "except in accordance with the law" means that the law is based on constitution, conscience and reasonable justification. On that ground the court in the past even declared some laws that were enacted by the parliament null and void. Therefore, the constitution has not given any power to the court in relation with the contempt of court laws to make unlimited and unrestricted interpretations of the conditions that have not been clearly stipulated by the law. In many countries where there are clear laws on contempt of court and definitions of conditions on the issues of contempt, such provisions were made ineffective as far as the fundamental rights like freedom of speech and freedom of expression of an individual were concerned. In the recent decades, courts of many democratic countries have not considered punishable even strong criticisms and condemnations of the court expressed through writing or speech or cartoon or poem. The proper precedents in this regard will be presented in due course of time in this court to show that the contempt is nowadays employed to establish order in the court and implement its verdict. The judicial limitations on the contempt of the court has now been replaced as order in the court and freedom in the press. The past precedents and legal concept propounded by this court are irrelevant in accordance with the present constitution. The main issue of this petition is going to be whether the priority will be accorded to the democratic rights like the freedom of expression and speech in the 21st century Nepal or to the obsolete principles of the contempt of court, which imposes restriction and controls over the opinion through punishable methods.

10. The petitioners have referred some precedents and authorities regarding the contempt of court. As per the legal opinion made available to me, those theories and precedents have all become obsolete even in those countries as is evident from the following statements:

Opinion expressed in judgment of the Supreme Court of India:

"Indeed, to criticize a judge fairly albeit fiercely, is no crime, but a necessary right, twice blessed in a democracy. For it blesseth him that gives and him that takes. Where freedom of expression fairly exercised, serves public interest in reasonable measure public justice cannot gag it or manacle it, constitutionally speaking," - Justice Krishna Iyer.

"Even so, if judges have frailties, after all, they are humans and they need to be corrected by independent criticism. If the judicature has serious shortcomings which demand systematic correction through socially oriented reforms initiated through constructive criticism, the contempt power should not be an interdict. Creative Legal Journalism and active statesmanship for judicial reform cannot be jeopardized by undefined apprehension of contempt action." - Chief Justice Gajendragadkar.

The following statement shows how the concept regarding the contempt of court is changing in Britain.

"Let me say at once that we will never use this jurisdictions as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it, to suppress those who speak against us. We do not fear criticism nor do we resent it, for there is something far more important at stake. It is no less than freedom of speech itself." - Lord Denning.

11. I have spent most of my life defending the rights to live in dignity with rights like freedom of expression and basis human rights for myself and the countrymen. I have time and again suffered at the hands of tyrannical and despotic rule. I have repeatedly joined the struggle readying myself to make any kind of sacrifice. I also played a leading role in the 1951 revolution and all subsequent struggles for democracy. The full democracy, people's supremacy, rule of law -- not a rule of an individual, independent judiciary etc and the modern democratic institutions are the result of such struggles and sacrifices. I don't have any personal gain except the democratic system, which itself is an achievement of my whole life. I do make instinctive responses whenever anyone makes the democratic institutions helpless and ineffective. My conscience does inspire me to offer myself for sacrifice and struggle. I have been engaged in the fight against the king's direct rule which I have termed despotic, offering myself for any consequences.

I have not been subdued in my mission or submitted to any situation where organs of the state supposed to promote democracy for self-governance and good governance become helpless before the authoritarianism or become its tool. Since I have devoted all my life to the protection of these ideals, neither fear and favor nor threat and punishment of any degree can deter me. So, the demands of the petitioners for severest punishment are meaningless for me.

12. Lastly, irrespective of the advices of my well-wishers, I would like to kindly request the decision makers that if they believe that the citizens' rights of freedom of speech and expression are as fundamental and basic as reflected in the preamble of the constitution, they should under the oath of this constitution dismiss this work of malafide collusion. If the decision makers honestly find that the fundamental rights of freedom guaranteed by the constitution are inferior than the unlimited rights of the state organs including the court to use repressive and undefined power through interpretations of laws, I am ready to face maximum punishment. It is not only me or this court but the whole constitutional process and the constitution itself are under the judicial scrutiny today, because of the existing political situation in the country and wider public concern in this case.

(Translated by KESHAB POUDEL)