[A two-member bench of the Supreme Court had dismissed a public interest litigation challenging Karki’s appointment two years ago. Another two-member bench headed by the-then chief justice, Ram Kumar Shah, had disposed off the “wedding gift” case in favour of the princess around the same time. Some civil society activists had taken to the streets, objecting to Karki’s appointment as the anti-graft head, a constitutional body, alleging that his track record as a bureaucrat was not good and that he did not have the “high moral character” the post demanded. The Supreme Court entertained a PIL recently by the same person, and found merit in his plea this time.]
Last
week, Nepal’s Supreme Court settled two major cases. A three-member bench
annulled the appointment of Lokman Singh Karki, chief of the anti-graft
constitutional body, inferring that he lacked the necessary qualification and
the “high moral character” the office called for. In another judgment, the
court said that the little less than one hectare land in Kathmandu that
Gyanendra Shah gave as a wedding gift to his daughter when he was the king, is
a property that should belong to the “National Trust”, a body created to take
over and manage property of the erstwhile royals. In both cases, the Supreme
Court reversed its own judgment given a couple of years ago, citing “grave
error in justice” as the reason for entertaining respective appeals. What is
amazing is the speed at which justice was delivered — less than four months —
when there are about 22,000 cases pending in the apex court, some for years.
Interestingly,
Karki was appointed to the post nearly 45 months ago by the cabinet that was
headed by the-then Supreme Court chief justice, Khilraj Regmi, on the
recommendation of the heads of the four major political parties, including the
current prime minister, Pushpa Kamal Dahal.
A
two-member bench of the Supreme Court had dismissed a public interest
litigation challenging Karki’s appointment two years ago. Another two-member
bench headed by the-then chief justice, Ram Kumar Shah, had disposed off the
“wedding gift” case in favour of the princess around the same time. Some civil
society activists had taken to the streets, objecting to Karki’s appointment as
the anti-graft head, a constitutional body, alleging that his track record as a
bureaucrat was not good and that he did not have the “high moral character” the
post demanded. The Supreme Court entertained a PIL recently by the same person,
and found merit in his plea this time.
The
fast-track judgments have raised serious questions about the fairness and
impartiality of the judiciary that has now openly started recruiting judges
according to their political allegiance. Although the two recent verdicts make
no explicit adverse comments on the judges in the previous benches, the ground
given for their review — “gross errors in judgment” — can be read as a
disapproval of the judicial character and knowledge displayed by the judges who
delivered the earlier verdicts.
The
Judicial Council, headed by Chief Justice Sushila Karki, met till Friday
midnight to finalise the list of 80 high court judges amidst a “boycott” by two
of the five members. Justice Baidhyanath Upadhyay, next to the CJ in seniority,
and Ram Prasad Sitaula, who represents the Nepal Bar in the council, abstained,
apparently protesting a perceived “deal” between the CJ and Maoists in the
appointment of the judges. Incidentally, only three members — the chief
justice, law minister and the government nominee to the council, the last two
belonging to the Maoist party — approved the panel of judges drawn from the
judicial service, Bar and the lower courts. Some of those selected are close
relatives of prominent Nepali Congress leaders.
The
current chief justice has chosen not to constitute the “constitutional bench”
as mandated by the constitution, as she does not get along with the senior-most
judges entitled to be on that bench, fuelling discontent within. The failure or
inadequacy of the apex court has raised yet another fundamental question: Who
is the judiciary accountable to? A discredited judiciary will have a far bigger
impact on democracy than failing politicians.
A
decade ago, by joining the peace process, the Maoists gave out the message that
they will no longer pursue “totalitarian” politics. They advocated a judiciary
in which judges have to be accountable to the legislature, but with their
numbers declining in the second Constituent Assembly cum legislature, they gave
up the demand. However, in 2012, a new political experiment, a compromise on
the principle of separation of powers, was undertaken that made Khil Raj Regmi,
chief justice of the Supreme Court, the prime minister as well. India, the
European Union and the UN approved it.
In
India’s case, it was not only the UPA government then that welcomed the
decision, but Ravi Shankar Prasad, a senior Opposition leader then and a Union
minister now, travelled to Kathmandu and welcomed the head of judiciary being
given the additional executive responsibility. This was conveying a message
that the Opposition in India concurred with key political initiatives that the
Indian establishment took during the transition, including bringing the Maoists
to the democratic process, 2005 onwards.