7-13 February 2014 #693

Biswanath Upadhyay, 84

Former chief justice’s contribution to democracy should serve as an example for today’s lawmakers, Radheshyam Adhikari, Himal Khabarpatrika, 2 February

Biswanath Upadhyay, one of the pivotal figures in Nepal’s legal landscape responsible for the 1990 constitution, passed away on 30 January after suffering a fatal brain haemorrhage. In his more than four decades of service, Upadhya’s earned praise not only from the legal sector, but also from his contemporaries in public administration for his integrity and courage to make difficult decisions.

The son of Malangawa in Sarlahi district started his career as a legal officer in Nepal Rastra Bank in 1955, after which he entered the Ministry of Law. Even before he joined the judiciary, Upadhyay made a name for himself after he was put in charge of revising the Muluki Ain. He joined the Supreme Court in 1972, and one of the earliest cases that he oversaw led the administration to amend and improve the country’s inheritance laws.

With his court rulings during the Panchayat years, Upadhyay showed unprecedented commitment towards maintaining the judiciary’s independence and reining in the powers of the executive. The rulers found him a constant irritant and did everything in their power to stifle his progress, including removing him from the courts and transferring him to the anti-graft body known as the Abuse of Authority Prevention Commission.

After the people’s uprising in 1990, Upadhyay chaired the Constitution Suggestion Committee. There he was a key contributor in the drafting of the landmark document that all political actors agreed to within the given deadline, a feat unmatched by today’s distracted lawmakers. At a time when the royal court was deeply concerned about its constitutional powers, Upadhyay also managed to keep dialogues between the king and revolting parties constructive.

Drafting a constitution is a highly specialised job, and even Upadhyay’s critics agree that he was second to none at this craft. Former Chief Justice Nayan Bahadur Khatri once told me that Upadhyay single-handedly formulated the Evidence Act, another milestone in our legal sector. Any student of law can attest to how important this particular act is.

Once the constitution was passed, Upadhyay was promoted to the top most position at Nepal’s highest court. Although this may sound like the most obvious option, it was not a unanimous appointment at the time. Panchayat-era rulers feared that having Upadhyay as chief justice would make life difficult for them and thus politicians harboured a deep sense of mistrust against him.

But the man remained steadfast in his decision-making. He handled issues like the Tanakpur barrage and the parliament’s dissolution, which lent very easily to heavy political wrangling, with measured confidence amidst both praise and criticism.

I became chairman of the Nepal Bar Association the same time Upadhyay headed the SC. Both bodies shared a high degree of understanding and trust. At that time the bar didn’t have its own building and I asked him if we should request the government to provide us land for an office. In reply, Upadhyay said that the bench and the bar were two sides of the same coin and helped establish our workplace.

After retiring from the judiciary in 1996, Upadhyay kept himself informed about the country. Political leaders, prime ministers and government officials all sought his advice in times of uncertainty. His interviews became reference material for us all.

Still, one can’t say that all his decisions were free from controversy. One occasion worth remembering is his ruling to reinstate the parliament dissolved by then Prime Minister Manmohan Adhikari in August 1995. The repercussions of that move are still being discussed today and will be relevant in the future.

But it would not be exaggeration to say that Biswanath Upadhyay’s achievements and contributions are the zenith of Nepal’s legal history. He may no longer be with us today, but his body of work will guide lawmakers for generations to come.   Radheshyam Adhikari is a former Constituent Assembly member and former president of the Nepal Bar Association.

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