Madam Chief Justice

Unlike the President and the Speaker of Parliament, Chief Justice Sushila Karki is not a political appointee

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Binita Dahal

After the promulgation of the new Constitution in the Nepali year 2072 that just ended, the country made history with the first female President, first Speaker of Parliament. On Wednesday, the first day of 2073, we also got the first female Chief Justice.

However, President Bidya Bhandari’s selection was based on her proximity to the ruling UML party, and her being the widow of the late Madan Bhandari. The choice of Onsari Gharti Magar as Speaker had a lot to do with her being a former guerrilla married to former CPN(M) Secretary, Barshaman Pun.

In contrast, Chief Justice Sushila Karki was recommended by the Constitutional Council this week purely on merit and on the basis of seniority – it had nothing to do with political or personal favours. This is a recognition of her own struggle to overcome obstacles in a profession dominated by men. She served as a Supreme Court justice for the past eight years where she made some bold and independent decisions, even though the verdicts sometimes went against some political figures she was close to.

It is another irony that Karki’s recommendation has yet to be ratified by parliament because of the lack of consensus among political parties for a house hearing. Which is why she still has the prefix ‘acting’ in front of her Chief Justice title. This is the first time in history that a Chief Justice is acting, and is a damning indictment of the political paralysis in government to formally approve the country’s first female Chief Justice.

Karki is known for her diligence, integrity, a frugal lifestyle and a proven track record of zero tolerance for corruption. She lives in a rented room in her sister’s congested house in Dhapasi. She was born in Biratnagar, and her family was close to the Koirala clan. She used to be a member of the student union affiliated to the Nepali Congress during the Panchayat years.  Her husband also used to be active in the NC during the 1970s when the party was underground and was involved in the daring hijacking of a Royal Nepal Airlines flight in 1972.

Despite her party affiliation, Karki was known to be fair and independent in her judgements. She came into the limelight for the first time after her verdict against Minister Jaya Prakash Prasad Gupta who served a jail sentence on corruption charges. She also revived the cases against Khum Bahadur Khadka and Govinda Raj Joshi, both of the NC.

Some have questioned Karki’s grasp of constitutional issues. Her predecessor, Kalyan Shrestha, who stepped down this week was embroiled in controversy over his decision as head of the Judicial Council to nominate 11 justices to Supreme Court. Karki was a member of the Council that took that decision.

Due to the provision of a high court in the new constitution the Appellate Court will soon be dissolved. The laws related to the high court are yet to be formed, and may take a few more months. As Chief Justice, Karki will have to twist some tails and she is going to face the pressure from inside the court and political parties. People close to her say that she will never base her decisions on pressure, but rely on her legal instincts and the strict merit of the case.

Former Chief Justice Ram Prasad Shrestha who recommended Karki as justice, said he chose her not because she is a woman but because of her capability. Which is why she got handed the most sensitive political corruption cases. She even recommended the Judicial Council to investigate disputed judges of the Special Court who gave a clean chit in some high profile corruption cases like the one involving  Cholendra Shamsher, now a justice of the Supreme Court and next in the line for the post of Chief Justice.

This will also be another challenge for Karki, who will share the bench with Shamsher. Her other challenge will be to expedite some of the 23,000 pending cases in the Supreme Court. While we celebrate the appointment of Nepal’s first woman Chief Justice, we must admit she has her work cut out for her during her 14 month tenure.

@binitadahal

This article was originally published in Nepali Times (http://nepalitimes.com/regular-columns/Legalese/Madam-chief-justice,696)

Judicial match-fixing

By giving in to political pressure Chief Justice Kalyan Shrestha has failed to uphold the integrity of the Judiciary

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Binita Dahal

After months of dithering, the Judicial Council finally nominated 11 justices to the Supreme Court this week. Chief Justice Kalyan Shrestha, who heads the council, nominated seven sitting judges from the Appellate Court and four senior advocates.

They are Dipak Kumar Karki, Kedar Chalise, Meera Khadka, Sharada Prasad Ghimire, Hari Krishna Karki, Biswombar Prasad Shrestha, Ishwor Khatiwada, Ananda Mohan Bhattarai, Anil Kumar Sinha, Prakash Raut and Sapana Pradhan Malla.

As per constitutional provisions, the senior-most Justice becomes the Chief Justice after the retirement of their predecessor. Which means Hari Krishna Karki, Bishwombar Prasad Shrestha, Prakash Raut and Sapana Pradhan Malla are next in line to be future Chief Justices.

This clearly shows that the members of the judicial council were very strategic in placing the nominees’ names in order of seniority. It also shows that there has been political manipulation in selecting the names and ranking them. It is like match-fixing in the judiciary.

This is deadly serious as the politically affiliated nominees will give verdicts according to their political affiliation, thus continuing to undermine the judiciary and the rule of law.

The Judicial Council apparently recommended political figures for the first time. Sapana Pradhan Malla, though highly regarded as one of the most competent female lawyers of her generation, has already played the role as the parliament member from CPN-UML. She is a member of that political party.

This means the principle that appointments to the Supreme Court must be non political and not from political cadres has been flouted and creates a precedence for future appointments. What is even more ironic is that it is Chief Justice Kalyan Shrestha, known for his integrity and professionalism, who made this decision under his watch.

Shrestha got to lead the Supreme Court at a time when its image had been tarnished by two of his predecessors, and there were high expectations on the part of the Bar and Bench from him to do better. His predecessor, Damodar Prasad Sharma, was criticised for recommending some controversial figures to the Apex Court, and the person he replaced, Justice Ram Kumar Prasad Sah, was also similarly tarnished.

Unfortunately, like them, Shrestha also gave in to political pressure. Many career judges and senior advocates who are in line for Chief Justice were seen lobbying to be appointed both in the Judiciary and political parties. It is an irony, and a sign of the times, that we have seen career judges visit offices of political parties to thank the leadership for recommending their name to the Judicial Council. The current list as in the past has been made with some vested interests from the JC.

Whatever precedence he set in many of the human rights and women’s issues will now be forgotten because of his politically motivated appointments. Shrestha failed to exercise impartiality and reward judges for their merit and integrity.

The Judicial Council has brought in two women, two Newars and a Madhesi, but has failed to make its nominations truly inclusive under guidelines of the new constitution. It has also nominated only people from the judicial profession and not those with academic backgrounds, civil servants and the Attorney General’s office. There are also no senior advocates from outside Kathmandu.

It was comparatively easy for Chief Justice Shrestha to take the decision as only the law minister was from the political side in the Council. But he failed to seize the opportunity.

The Supreme Court which has a massive backlog of cases is waiting for some qualified and capable justices who are willing to give justice to the people, not ones who have political or personal ambitions.

This article was originally published in Nepali Times (http://nepalitimes.com/regular-columns/Legalese/judicial-match-fixing-Nepal,674)

Enter: Chief Justice Shrestha

Kalyan Shrestha has the challenging task of restoring the integrity of a tarnished Supreme Court, and protecting the separation of powers

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Binita Dahal

The recent decision by the Supreme Court that the existing Truth and Reconciliation Bill did not meet international standards for human rights and justice has sent shock waves through the establishment.

The two former warring sides are now part of the state, and they are on the same side when it comes to evading being answerable to wartime crimes. Predictably, the UCPN(M) and the CPN-M are the least happy with the verdict of the apex court. In fact, the latest collapse of the negotiations over the constitution and the announcement of a series ofstrikes next month by the Maoist-led opposition alliance is an attempt to show this displeasure.

They argue that wartime excesses should be under the jurisdiction of a future TRC, and asked for a repeal of the verdict. They and the other parties want the TRC to just be a dispenser of amnesties and pardons. When the members of the newly formed TRC went to meet the UCPN(M) Chairman Pushpa Kamal Dahal, he directly rejected any move to resolve conflict-era cases through the TRC for which he only wants a limited mandate.

According to the Supreme Court verdict, the TRC cannot investigate already pending cases in the courts and it cannot ask the government to withdraw cases and recommend for amnesty as well.

“We were confused initially about the parallel jurisdiction of the court and TRC but now it is clear that the already pending cases can only be solved by a court, not the Commission,” TRC Chair Surya Kiran Gurung told me last week.

The Supreme Court has struck down provisions in the TRC Act that gave the Commission the right to recommend amnesty to cases of serious human rights violations, and declared that no amnesty can be given without the consent of victims.

The latest verdict has cleared three points:

The TRC has no right to see and investigate the cases which are already pending in the court system.

Conflict era cases will be investigated by the TRC, but if it decides that the case must be filed in the courts then it will recommend this directly to the Attorney General and not through the Ministry of Law as cited in the Act. The Supreme Court has thus taken out the involvement of the government.

Victims consent is required for both reconciliation and amnesty. One of the main dissatisfaction among victims was the provision in the Act which gave the TRC the authority to grant amnesty. The SC verdicthas ruled out the TRC’s role in general amnesty.

Even if the Maoists urge the ruling parties to review the court’s verdict it is not easy for them to file a review petition. Previous SC verdicts have also ruled out political interference in the transitional justice mechanism. There are approximately 1,000 criminal cases from the conflict period pending in the court system and the District Police Office.

Advocate Raman Kumar Shrestha says the verdict will impact on the constitution drafting process since it will open all cases which are currently closed due to the absence of a TRC. As PM, Baburam Bhattarai made history in 2012 by withdrawing nearly 200 cases involving 1,700 people, according to the Ministry of Law. Now, all these cases can be re-opened, and that is why the Maoists are against the verdict.

Another fallout of the SC verdict is that it has brought the two factions of the Maoists closer together, with talks of reunification opening despite their serious differences. This is so that they can pool their combined strength to oppose the Supreme Court verdict. This opens up the question about what the real reasons were behind the split in the Maoists if they have a common stance on war crimes. Maoists of all factions and some sections of the ruling NC-UML combine would like to see all conflict-era cases to be resolved through a political understanding and not through the judiciary.

It is rare for the Supreme Court to review a verdict of the special bench, even when the government agrees to file a review petition. This means the Maoists will try to put pressure on the government by obstructing talks on the constitution and through street protests to try to overturn the verdict.

@binitadahal

This article was originally published in Nepali Times (http://nepalitimes.com/regular-columns/Legalese/new-Chief-Justice-Kalyan-Shrestha,519)

Interim order and interim constitution

By delving into politics, the Supreme Court verdict on the 16-point deal has once again blurred the separation of powers

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The interim order issued by the single bench of the Supreme Court this week on the 16-point agreementbetween the four biggest political parties to ‘fast-track’ the constitution with a power-sharing compromise has become mired in controversy over the separation of powers.

This is not new, there was a similar debate with the installation of the election government headed by Chief Justice Khil Raj Regmi in 2013. The fact that those who approved of that decision are against it this time just shows how opportunistic politics can be.

The two page court decision clearly shows that the Judiciary has entered into the political realm even though it has mentioned that Article 1, 82 and 138 of Interim Constitution are challenged by the recent agreement between the parties.

The political leaders decided that the disputed issue of federalism would be settled by a two-thirds majority in Parliament based on the report of a Federal Commission to demarcate the borders of the provinces.

The Supreme Court, however, issued the interim order to not promulgate constitution without solving the issue of federalism first. But what the honourable justice seems to have forgotten is that this is precisely where everything has been stuck for the past seven years, and the 16-point agreement represents the first hope in untangling the knot. The interim order doesn’t mean that the Constituent Assembly has to stop work on drafting the constitution, and it is clear that the judiciary is over-stepping its bounds by interfering in a sovereign elected assembly.

The major parties which signed the agreement held an emergency meeting on the same day that Supreme Court issued the interim order declaring that they will not stop work in drafting the constitution. Chairman of the CA Subhas Nembang has also been vocally critical of not just the court this week, but also the President Ram Baran Yadav for seeming to side with the court. Actually, the Supreme Court order only alerted CA that according to Article 138, the issue of federalism must be included in the new constitution prior to its dissolution.

The court maintained that according to the provision of Article 138 of Interim Constitution the Constituent Assembly should decide the borders, number, names, structures and headquarters as well as a detailed list of these provinces, their resources and the sharing of rights. Based on this the court said that federalism should be decided by the CA itself and not by a future commission.

It is not normal practice for the Supreme Court to entertain this kind of writ petition, and it was in fact rejected by the Supreme Court administration. This writ was filed by Vijay Kant Karna, former editor and ambassador to Denmark, and the hearing was conducted by Justice Girish Chandra Lal, who is retiring in the first week of January. The recent 16-point agreement had sprung hope among Nepalis that there was finally a breakthrough on the constitution so that the country could focus on post-quake reconstruction. But the court order has dampened those hopes somewhat.

The four parties are putting on a brave face, and have said nothing will stop their agreement from being implemented. Their resolve comes from the fact that the UML, CPN(M) and the MJF(L) will all get berths in a new national unity government after the constitution is written. They are all pinning their hopes that the division bench of the Supreme Court will overturn the single bench verdict on the petition.

Justice Girish Chandra Lal’s decision has also opened him up to allegations of a Madhesi tilt in a decision that favours disgruntled members of the opposition alliance which did not agree with the 16-point deal. Numerous op-eds in the Nepali media have remarked that it is not a coincidence that the writ petitioner, lawyers, and Justice all are Madhesis who have been against the constitution compromise.

@binitadahal

This article was originally published in Nepali Times (http://nepalitimes.com/regular-columns/Legalese/supreme-court-verdict-on-16-point-deal-blurs-separation-of-powers,509)

Bar vs Bench

Enough accusations of corruption in the judiciary, time to start investigating them

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The Nepal Bar Association (NBA), the umbrella organisation of lawyers, recently declared at its 13th National Conference in Chitwan that there was rampant corruption in the judiciary. It said the justices themselves were on the take, and asked theChief Justice to take action against them.

Soon after, NBA vice-president Tika Ram Bhattarai and the ex-secretary Raman Kumar Shrestha said in an interview to an online news site that they could provide evidence of such corruption. They also added that it wasn’t just judges who were rotten: lawyers, journalists and power brokers were all involved in bribery.

The public has come to take any allegation of corruption in high places as commonplace. They aren’t surprised that the Supreme Court has also been tarred by the same brush, but this time it was the NBA making the allegation — a body that is supposed to keep the judiciary accountable.

The personal secretariat of Chief Justice Ram Kumar Prasad Shah then fired off a letter to the NBA asking it to provide evidence to back up its accusation against the apex court. This was unprecedented, the Chief Justice or his office had never before written such a letter to anyone. In fact it was highly irregular for the Supreme Court to do so.

Apparently the justices felt alluded to pressure the Chief Justice Shah at a full court meeting to send the letter. One of the Justices told me, on condition of anonymity, that his colleagues argued that if the Chief Justice did not ask for the evidence then it would seem like they were guilty.

As expected, the NBA was not able to provide evidence to the Chief Justice of corruption at the Supreme Court – after all the corrupt don’t leave a paper trail. In their written statement, however, the Bar said it did have evidence but that it would provide that to the Judicial Council or Parliament Hearing Committee.

The NBA’s answer also came across as careless and irresponsible. If it have evidence as it had claimed earlier why did it hesitate to share it with the Chief Justice, who after all, is also the chairman of Judicial Council? The Chief Justice would have been under pressure to take action.

After the NBA’s response, we haven’t heard a peep from the Bar. The Chief Justice should have taken it up at the Judicial Council and asked for further evidence by now. The Parliament Hearing Committee which was active during the appointment of Justices has also not taken the NBA letter with the seriousness it deserved.

Every year, Transparency International’s report show that there is rampant corruption in Judiciary. But no Justices from SC have ever been charged with corruption. The then Justice Prakash Wosti’s five-member committee had also confirmed that there is corruption in the Judiciary. A recent national conference of Justices had also made the same statement.

Enough accusations, the time has now come to investigate them. After all, we are talking about the Supreme Court – and that final provider of justice should not just be making allegations, it should be weeding out the crooks. In fact it is the media that is providing the evidence that the NBA isn’t through with stories like the one by Bhrikuti Rai of the Centre for Investigative Journalism and printed in this paper (#753) about the Chief Justice letting off a fake doctor who embezzled money meant for medical care in Humla on bail.

The Bar and the Bench are in a perpetual state of war, and that is nothing new. In 2008, the president of the NBA, Biswa Kant Mainali made the statement that the post of Justices is a license to corruption. The full court had decided to seize his advocate license for six months. But after lawyers took to the streets, the decision was revoked.

The NBA and the Supreme Court are both there to dispense justice. There are always two parties involved in corruption: the giver and the taker. So we can’t ignore those who are bribing the judges either.

It is already too late to expose corruption in the judiciary, and restore people’s trust in an impartial justice system. Both the Bar and the Bench from their side have to work together to take action against the corrupt in their midst. Otherwise, it will be interpreted that they themselves are afraid that the issue will negatively affect them.

@binitadahal

This article was originally published in today’s Nepali Times (http://nepalitimes.com/regular-columns/Legalese/time-to-investigate-corruption-in-judiciary,473)

Justice in transition

The Maoists react badly to the Supreme Court verdict rejecting amnesty provisions in the TRC Act

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The recent decision by the Supreme Court that the existing Truth and Reconciliation Bill did not meet international standards for human rights and justice has sent shock waves through the establishment.

The two former warring sides are now part of the state, and they are on the same side when it comes to evading being answerable to wartime crimes. Predictably, the UCPN(M) and the CPN-M are the least happy with the verdict of the apex court. In fact, the latest collapse of the negotiations over the constitution and the announcement of a series ofstrikes next month by the Maoist-led opposition alliance is an attempt to show this displeasure.

They argue that wartime excesses should be under the jurisdiction of a future TRC, and asked for a repeal of the verdict. They and the other parties want the TRC to just be a dispenser of amnesties and pardons. When the members of the newly formed TRC went to meet the UCPN(M) Chairman Pushpa Kamal Dahal, he directly rejected any move to resolve conflict-era cases through the TRC for which he only wants a limited mandate.

According to the Supreme Court verdict, the TRC cannot investigate already pending cases in the courts and it cannot ask the government to withdraw cases and recommend for amnesty as well.

“We were confused initially about the parallel jurisdiction of the court and TRC but now it is clear that the already pending cases can only be solved by a court, not the Commission,” TRC Chair Surya Kiran Gurung told me last week.

The Supreme Court has struck down provisions in the TRC Act that gave the Commission the right to recommend amnesty to cases of serious human rights violations, and declared that no amnesty can be given without the consent of victims.

The latest verdict has cleared three points:

The TRC has no right to see and investigate the cases which are already pending in the court system.

Conflict era cases will be investigated by the TRC, but if it decides that the case must be filed in the courts then it will recommend this directly to the Attorney General and not through the Ministry of Law as cited in the Act. The Supreme Court has thus taken out the involvement of the government.

Victims consent is required for both reconciliation and amnesty. One of the main dissatisfaction among victims was the provision in the Act which gave the TRC the authority to grant amnesty. The SC verdicthas ruled out the TRC’s role in general amnesty.

Even if the Maoists urge the ruling parties to review the court’s verdict it is not easy for them to file a review petition. Previous SC verdicts have also ruled out political interference in the transitional justice mechanism. There are approximately 1,000 criminal cases from the conflict period pending in the court system and the District Police Office.

Advocate Raman Kumar Shrestha says the verdict will impact on the constitution drafting process since it will open all cases which are currently closed due to the absence of a TRC. As PM, Baburam Bhattarai made history in 2012 by withdrawing nearly 200 cases involving 1,700 people, according to the Ministry of Law. Now, all these cases can be re-opened, and that is why the Maoists are against the verdict.

Another fallout of the SC verdict is that it has brought the two factions of the Maoists closer together, with talks of reunification opening despite their serious differences. This is so that they can pool their combined strength to oppose the Supreme Court verdict. This opens up the question about what the real reasons were behind the split in the Maoists if they have a common stance on war crimes. Maoists of all factions and some sections of the ruling NC-UML combine would like to see all conflict-era cases to be resolved through a political understanding and not through the judiciary.

It is rare for the Supreme Court to review a verdict of the special bench, even when the government agrees to file a review petition. This means the Maoists will try to put pressure on the government by obstructing talks on the constitution and through street protests to try to overturn the verdict.

@binitadahal

This article was originally published in Nepali Times (http://nepalitimes.com/regular-columns/Legalese/Justice-in-transition,458)

 

Supreme once more

The new Chief Justice is from a minority within a marginalised community, this is hugely symbolic

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Ram Kumar Prasad Sah, who was sworn in as the Chief Justice last week by the President, takes office at a time when Nepal’s judiciary has fallen into some serious disrepute.

He will be in office for nine months, and after his appointment assured the people through the media that he would not compromise on the independent judiciary at any cost.

The reason this statement sounded a bit defensive was because of the public perception that the previous interim electoral government led by Chief Justice Khil Raj Regmi had compromised on the independence of the judiciary by removing the separation of powers. The Supreme Court has also been tainted by the appointment of six controversial justices earlier this year.

Khil Raj Regmi’s appointment was criticised by legal and media fraternity, and after Regmi stepped down, the gavel went to Damodar Prasad Sharma who immediately came under fire for the appointment of the controversial judges. Though Regmi’s government was successful in managing peaceful, free elections with a huge turnout last year, his decision to head the government undermined the independence of the justice system. Damodar Sharma’s lack of accountability tainted it further.

Sah knows that he has to set a lot of things right. He did speak up against the appointment of the justices by Sharma and wrote a note of dissent against two of the nominees. But, for the moment, he has no option but to retain them in the court.

Sah is from Mahottari and is the fourth Chief Justice from the Madhesi community. Not only is he from the plains, but he is a Sudhi, considered a ‘lower’ caste. His Madhesi predecessors tended to be from the higher castes. This itself is of great symbolic value to show that Nepal’s branches of government are becoming inclusive.

However, tokenism is not enough. Sah will have to prove that he is capable of reforming and cleaning up the judiciary. In his previous verdicts, Sah for his part, has shown decisiveness, competence, and demonstrated a clear vision. He started his career as a section officer in the Supreme Court 40 years ago, and during his long career has never been tainted by controversy except that he once asked for Rs 7 million for his medical treatment in Bangkok.

He has his work cut out: the Supreme Court has a massive backlog of 19,000 cases and not enough judges to clear it up. Sah’s predecessor, Damodar Prasad Sharma, had vowed to reduce the backlog of pending cases from 17,000, but instead the number of cases increased while he was Chief Justice. Previously, Sah was one of the members of Judicial Council, and hopefully, this will address the concerns of lawyers about Chief Justice appointments.

Sah has said that he will prioritise cases of rape and human trafficking, and clear them within three months. He has also promised a paperless court, which sounds a bit ambitious. Even so, he took a good first step of publishing the list of cases at 10am on the first day of his appointment. He has ordered Justices to be at the bench by 11am promptly and believes in a good start being a job half done.

A Transparency International report has shown repeatedly that there is massive corruption inside Nepal’s court system. Sah will have to tackle growing corruption within the judiciary and lessen the influence of power brokers in verdicts. Since graft is so ingrained, and almost regarded as standard operating procedure, Sah will need all the commitment he can muster to tackle corruption in the courts. Only then can he reassure the public that the Supreme Court is an independent arbiter of justice.

@binitadahal