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VOL. 28, NO. 06, Sept 26 , 2008 (Ashwin 10 2065 B.S.)
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COURT-NBA TRUCE
Risky tussle
Although all the damages have been done, lawyers and judges have used their sense at the last minute to save the judiciary
By KESHAB POUDEL
After more than a week long standoff, the judges and lawyers finally used their sense to save the judiciary from eventual collapse. The agreement reached between the judges and lawyers averted the major crisis.
With the intention discussions and compromise, they signed the truce on Tuesday. The judges on their part revoke the decision to suspend NBA president and senior advocate Bishwokanta Mainali and lawyers too have given up their bench boycott call.
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CJ Giri and Mainali (right): Risky tussle |
At a time when the country has been passing through a very critical period with destabilization of almost all institutions, judiciary – the only institution that had remained out of controversy - too was finally pushed to the process of destabilization.
Although several efforts have been made in different period to destabilize the judiciary, it had survived them all the time. However, the judiciary was pushed into the controversy this time not from outsiders but from judges and lawyers themselves.
With the formation of Maoist-led government and surprising appointment of former judge of appellate court Raghab Lal Vaidya as an attorney general, many thought something was brewing.
Soon after taking the office, Vaidya used harsh remarks against judges indicating there was something cooking against the independence of judiciary.
Whether it was coincidental or malicious design, the credit for the recent rounds of judicial standoff goes to Nepal Bar Association president and senior advocate Bishwo Kanta Mainali. The remarks he made at Nepal Bar Association on September 16 sparked the present controversy.
In a program attended by chief justice of apex court Kedar Prasad Giri as the chief guest, the remarks by responsible lawyer were so harsh that judges, who had remained tolerant for a long time, could not control their anger.
Although two former presidents of Nepal Bar Association senior advocate Harihar Dahal and SambhuThapa and attorney general Raghab Lal Vaidya spoke vehemently against judiciary charging judges as a bunch of corrupt people, soft spoken senior advocate Mainali, who have avoided confrontation with court in his last two years of tenure, wasstood out in the row.
As chief justice Giri and senior judge Anup Raj Sharma remained eyewitness of the program, other judges prevailed over the decision for suspending Mainali for six months on the basis of sensational headline created by Rajdhani daily on September 17.
It is reported that one senior judge who returned from a treatment in New Delhi pursued chief justice Giri who was proposing a middle way or filing a petition on contempt of court to take such drastic action.
Before suspending senior advocate Mainali, on September 18, judges of appellate court and district courts boycotted the bench for two hours last Friday.
The decision sparked a new round of protest on the part of NBA which called three days of boycott of court on September 21, 22 and 23.
Although several efforts have been made to end the deadlock, the standoff between the lawyers and judges continues till writing of this story on September 24.
As people from same profession, they don't have any option other than to compromise at the last minute. But, nobody knows how long they will remain rigid on their stand.
Sensible persons in society disagree with extreme ways chosen by both the parties of disputes. Even if Mainali's remarks were against the court, the judges should have moved contempt of court and provided senior advocate Mainali an opportunity to present his views.
"Judges have shown how irresponsible they are by taking such harsh actions against me. I was not give any chance to explain my views," said senior advocate Mainali, who tried to keep judiciary out of controversy in his nearly two years of tenure as a president of NBA.
Although individually no one will lose or win, the episode has damaged the dignity and prestige of judiciary.
"There is a need to protect the institution like judiciary but there is also a need to reform judiciary to increase public faith. The judiciary should be independent, free and fair. People have to take judiciary as the last resort to protect their life, liberty and property. I am conscious about the dignity and independence of judiciary. What is my concern is the corruption as long as judges are given criminal immunity in the corruption charges," Mainali told Spotlight. "I am not against honest judges but I am arguing for the punishment of corrupt judges."
Senior advocate Mainali who always gave importance for judicial stability and dignity unexpectedly got involved in the controversy in this critical hour. "The bar and judiciary must be united in this critical transition period. In the process of making new constitution, we have to work together to uphold the dignity of judiciary."
But he regrets the decision of the full court to ban him from practice for six months. "It is against the natural justice. Right to profession is a fundamental right. This decision of the full court is unfortunate decision in the history of judiciary. Since last 36 years I have defended free, fair, competent and independent judiciary."
Had the petition of contempt of court been filed against Mainali for making the remarks; the situation would not have gone out of control. After all a judiciary has the final say in the question of laws.
In a trade union spirit, the judges boycotted the bench for two hours seeking actions against lawyer. In reply, lawyers boycotted the court. Ultimately, the people at large have to suffer. A large number of people who come to the court with cases are immediate sufferers of the decision of lawyers.
Dominated by young lawyers ideologically close to communism who don't have faith in rule of law and individual freedom and rights, NBA's recent actions were reflected by such views. In the last one year, a section of lawyers have been trying to discredit the judiciary charging it as a corrupt institution.
Even at the same program in which Mainali made those controversial remarks, other speakers had also charged that there are rampant corruption in judiciary and said that corrupt judges should not be given legal impunity. Former presidents of NBA Dahal and Thapa were severely critical of judges. Attorney general Vaidya also criticized them vehemently.
Mainali's remarks acted as the last straw. "How long can we wait as a judge facing such kinds of individual and institutional criticism? We took the decision expecting the present scenario. This is necessary to keep independence of judiciary," said a Supreme Court judge on condition of anonymity. "If there is a corruption in judiciary, the lawyers have to share the blame equally."
Whatever the judges said, some judges have already come out against their own decision. "I opposed the decision to suspend Mainali. I proposed some middle way which was denied in the meeting," said judge Bal Ram K.C. in Reporter's Club.
The court decision is definite to spark resentment among lawyers. Nepalese judiciary has a long history of protecting individual freedoms and rights. During the Maoist insurgency, most of the Maoist workers including the present general secretary of NBA Raman Shrestha were released under an order from court. Maoist lawyers Khim Lal Devkota, Ek Raj Bhandari, Maoist leader Suresh Ale Magar and Matrika Yadav were released from prison under the court's order.
Senior political leaders like Girija Prasad Koirala, Sher Bahadur Deuba, CPN-UML general secretary Madhav Kumar Nepal and Maoist leader Pushpa Kamal Dahal, all were protected by the judiciary.
But now in a process of destroying institutions, judiciary has fallen into a trap by the misadventure of some lawyers and judges.
Compare to other branches of state, judiciary has still survived as a credible institution in Nepal which can assure the freedom, democracy and rule of law.
