Next Door Nepal: When judiciary turns activist

Yubaraj Ghimire | October 11, 2016: An activist judiciary may make its pronouncements clearer and be far less ambiguous in its approach, but it may also generate a stronger, equally loud and opposite reaction. This is the situation the supreme court of Nepal is facing in the wake of the appointment of a dozen new judges, some of them civil society activists who had earlier worked closely with external donors.

A programme organised by the supreme court last week with funding from Roller, a UNDP project, on the theme, violence against women and access to justice, has now triggered a war within the institution. Justice Baidhyanath Upadhyay, the senior-most judge, said, “I wish this programme had never taken place in the manner it happened.” He added that “the practice of full-court approving such events was ignored this time around”. The implied message was Chief Justice Sushila Karki did not consult the judges she thought may not concur with the idea of collaborating with a UNDP project.

It is not only the fellow judges who are miffed at what the CJ did. Police chief Upendra Kant Aryal left the programme midway apparently in protest even though the president, prime minister, the speaker of the House and the chief justice were present in the audience, after a play enacted at the event showed the police as a collaborator in cases of “sexual exploitation” of women. “There is reason to believe that the hosts including the CJ and Roller had approved the play before hand, its theme and content. Indicting a state institution was in very bad taste,” a sitting judge says.

The judge who spoke briefly about the programme was Sapana Pradhan Malla, a noted civil society activist who was previously a politician and MP. Malla had also been in the panel of the Geneva-based Committee Against Torture (CAT). The supreme court has not yet formally responded to queries on whether she has resigned from that position.

The apex court-UNDP collaboration has exposed the growing differences between the conventional judges and the activist ones. The dissonance has also come at a time when certain wings of the UN and some of the external donors face accusations of promoting and funding secessionists and ethnic militancy in the country. Such support is reflected in the comments made by their employees in social media, a liberty that they do not enjoy elsewhere.

The fear in a section of society is whether the supreme court will be guided more by activism and issues that the donors support, or will it be guided by the constitutional parameters, provisions and conventions. Activism often challenges the existing laws and practices in the state and society. The activist role of the supreme court — although it did not come in the form of a verdict — has been perceived as detrimental to the morale and reputation of the police.

However, there are people — in the media as well in civil society groups — who support the activist line of the apex court. Centre for Investigating Journalists, an NGO that hosted an international workshop for investigating journalists across the globe recently, brought out a paper that said Chief Justice Karki was the only hope for preservation and protection of human rights and democratic values as well as against rampant corruption in high places. Recently, the court decided to review two of its old verdicts. The first one is related to the eligibility of the chief of Commission of Inquiry Into Abuse of Authority, an anti-graft constitutional body, to hold the post following a PIL appeal. The issue in the second case is whether the state should confiscate the bungalow and land that the former king, Gyanendra Shah, gave to his daughter as a wedding gift. In the first case, a section of the media and civil society are opposed to Lokman Singh Karki’s appointment to the post, while in the second case, the current political establishment favours that the property be confiscated and handed over to a trust. The SC decision to review its own ruling, many believe, confirms with the tendency to be activist. Though entertaining appeals against some old verdicts is not unusual, doing so selectively may complicate matters, especially because the judges are clearly divided and at loggerheads.

Recently, the court decided to review two of its old verdicts. The first one is related to the eligibility of the chief of Commission of Inquiry Into Abuse of Authority, an anti-graft constitutional body, to hold the post following a PIL appeal. The issue in the second case is whether the state should confiscate the bungalow and land that the former king, Gyanendra Shah, gave to his daughter as a wedding gift. In the first case, a section of the media and civil society are opposed to Lokman Singh Karki’s appointment to the post, while in the second case, the current political establishment favours that the property be confiscated and handed over to a trust. The SC decision to review its own ruling, many believe, confirms with the tendency to be activist. Though entertaining appeals against some old verdicts is not unusual, doing so selectively may complicate matters, especially because the judges are clearly divided and at loggerheads. The bar is divided and frightened. “Some times I think I should stop practicing since I can only argue on the basis of constitutional provisions, laws and precedents set world-wide,” said a prominent constitutional lawyer. “I cannot go by the fluctuating mood and interests of the judges in the bench,” he added.

The bar is divided and frightened. “Some times I think I should stop practicing since I can only argue on the basis of constitutional provisions, laws and precedents set world-wide,” said a prominent constitutional lawyer. “I cannot go by the fluctuating mood and interests of the judges in the bench,” he added.

Besides, the supreme court judges may attract public criticism for their activist role, given past political and NGO affiliation as well as association with the donors. This could erode public faith in the judiciary.