The law and the media

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Binita Dahal

For the past year, the judiciary has often been mired in controversy. There was the decision in 2013 to appoint the Chief Justice as a caretaker prime minister to conduct elections, and the controversial move to appoint tainted judges to the Supreme Court.

Most of the criticism came from the legal fraternity and the media. But despite the hullabaloo, the appointments were approved by a parliamentary hearing. Stung by the uproar, the Supreme Court decided to strike back and make an example of Kantipur, Nepal’s widest circulated daily newspaper.

The parliamentary hearing of the Supreme Court judges recommended by the Judicial Council was sharply criticised by most media, starting with by the popular digital portal, Setopati. Kantipur then took up the subject by investigating the background of all the appointed justices. Even when the paper was slapped with a contempt of court against its group chairman, director, editor-in-chief and reporter, it continued its exposes.

During the first hearing of that case, Justice Cholendra Shamser Rana, who was one of the targets of the exposes, reviewed the sub-judice contempt case filed against Kantipur Group. In its second hearing Justice Gopal Prasad Parajuli, whose past judgments and personal details were investigated by Kantipur, ordered publishers and editorial staff of Kantipur to appear in person to explain why they shouldn’t be convicted in contempt of court case.

Most rulings by the courts are not more than two pages, but Parajuli delivered a 11-page tome that tried to prove that Kantipur was on a deliberate crusade to tarnish the image of the independent judiciary.

It was apparent that the Supreme Court was flexing its muscles and warning all journalists by putting Nepal’s most powerful media on the dock. Kantipur itself used the occasion to project its own profile as a champion of press freedom. Last week, on the day of the hearing, it gathered 50 members of its staff, politicians and industrialists in the Supreme Court premises as a show of force.

It was as if the group wanted to influence the court decision by a demonstration of solidarity. It has now become a prestige issue for both the Supreme Court and Kantipur. The paper has reported the case against itself with prominence on the front pages, providing maximum national exposure of its own importance. The publication’s main argument was that the court started its final hearing with the same justices who had previously looked at the case.

Although the group’s lawyers were putting forward a valid legal point, this was a clear breach of provisions of coverage of cases that are subjudice. According to universal juridical principles, one should not try to influence the court directly or indirectly during the period that a case is being heard. The media’s role is to point out the wrongdoings of court, not to stage a demonstration in the court premises during a hearing.

Whatever the past wrongs of the court, the media should also be equally responsible not to undermine the dignity of the independent judiciary. The media cannot appear to be a law unto itself, and not required to abide by it. The aggressive and prominent reporting of the case against itself is also a misuse of media responsibility.

To be sure, the Judicial Committee bypassed candidates with integrity and proven track record for those with questionable pasts, to say the least, when appointing Supreme Court justices. The media did its job by exposing this, but to exact revenge through this contempt case the Supreme Court has gone after the largest target to threaten the rest of the media to behave itself.

It is hard to say which way the verdict will go next week. In the past, the Court has been liberal in contempt cases and journalists have just been slapped on the wrist and cautioned about the law on subjudice cases. This time, positions have hardened, and by its aggressive taunts Kantipur may have exceeded the media’s accepted behaviour in a country that is supposed to respect the rule of law.

@binitadahal

This article was originally published in Nepali Times (http://nepalitimes.com/article/nation/supreme-court-kantipur-contempt-of-court-case,1685)

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)