Nepali Times
State Of The State
Between Bar and Bench


Barely a month after issuing a joint statement about protecting constitutionalism together, the Supreme Court Bench and the Bar have once more locked horns. This week, the Nepal Bar Association (NBA) called upon Chief Justice Dilip Kumar Paudel and the newly-appointed justice Pawan Kumar Ojha to resign.

The retaliation from the Bench was swift, and it sharply rejected the allegations. The confrontation is likely to intensify as four controversial personalities commence functioning as ad-hoc judges of the court. Ojha is one of the beneficiaries of a contentious decision, and was allegedly elevated to the Bench as a reward for his sterling performance as the Attorney General after February First.

He is the one who made the submission while defending the constitutionality of RCCC that a Hindu king is beyond the scope of judicial scrutiny. This set off an uproar in the legal fraternity but His Honour stood his ground. Like in everything else, it looks like it is loyalty rather than competence that has been handsomely rewarded. Lawyers fear that the independence of the judiciary is now imperilled because the Bench is being packed with royal favourites.

On the surface, the Bar-Bench faceoff could be seen as a case of clash of personalities. With his back-slapping familiarity with vice-chairman Tulsi Giri, Chief Justice Paudel gives the impression of being unabashedly establishmentarian. As an outspoken critic of post-February regime, Bar President Shambhu Thapa has carved a niche for himself in the civil society movement for democracy and peace. Thapa is a progressive activist, Paudel is a status quoist and it looks like the never the twain can meet. These two legal eagles may be sitting on either side of the low wall separating the Supreme Court and the Bar on Ram Shah Path, but they are poles apart politically.

In the royalist scheme of things, enunciated quite clearly by Ojha, the king is the supreme law giver, final dispenser of justice and the ultimate court of appeal. Such a king isn't just an incarnation of Vishnu, he is the personification of the Brahma-Vishnu-Mahesh triumverate of creator, custodian and destroyer. In the absence of a parliament to impeach erring judges, their lordships are secure in knowledge that as long as they follow the divine order they are safe.

Concerns of the Bar, on the other hand, are more mundane. In its concept of justice the seven pillars of an independent judiciary are necessary though not sufficient condition of democracy. Supremacy of law, equality before law, judicial independence and impartiality, juristic personality, non-retroactivity, legal representation, and presumption of innocence are the canons that under-gird any democratic society. It has no place here for the myth of divinely ordained monarchs.

The only thing bridging the generation gap between them is the constitution. But ever since the statute was held hostage to Article 127, that sliver of commonality has also vanished. That it took so long for this mutual suspicion to come out in the open is itself testimony to the deep-rooted conservatism of Nepal's legal fraternity.

Despite some exemplary rulings in favour of fundamental rights, there is a nagging suspicion that the court's sympathies have traditionally sided with the palace rather than the people. Politicians, too, don't hold the Bench in very high esteem. A judiciary weakened by its inner contradictions is a liability rather than an asset for the rule of law.

If at all an excuse was needed to restore parliament, this is the clinching reason to activate the constitutional process. In the absence of a functioning legislature, the judiciary has no force of its own. To save itself from those who consider themselves divine, the court needs to work to restore the people's sovereignty.

(11 JAN 2013 - 17 JAN 2013)