NEPAL: SC punishes the messenger
Nepal Supreme Court
The Supreme Court of Nepal, during an emergency five-hour hearing of the full court on September 19, retaliated against the president of the Nepal Bar Association (NBA), Bishwa Kant Mainali, and his remarks two days earlier against the legal malady of judicial corruption in the country. In reaction to his statement that, in effect, asserted that without a proper accountability mechanism a judgeship was a license for corruptiona fairly commonplace view in Nepal as well as other Asian countriesthe Supreme Court decided to prohibit Mr. Mainali from practicing law in any court in the country for six months effective from the date of the hearing. This decisionthe first time in the history of Nepal that such action has been taken against the president of the NBAapparently is the result of a two-hour strike by judges in the Kathmandu Valley. It is worth noting that the Supreme Court denied Mr. Mainali his inherit right to be heard and given a fair chance to defend himself in the legal proceedings against him.
In the present context of the development of democracy in Nepal following the overthrow of the monarchy and the re-establishment of Parliament, there is an intense debate in civil society about the need for radical changes within the judicial system of Nepal, which, like all other sectors of Nepalese society, has a reputation of being corrupt under previous regimes. Recently, the NBA decided to fight corruption in the judiciary and to study the controversial judgements rendered by the courts.
The judges, however, instead of seeking to weed corruption out of the judicial system, have remained critical of the NBA's decision. The full bench of the Supreme Court termed the decision of the NBA to study court judgements illegal and sought clarifications from the NBA on the issue.
Clearly, what seems to be taking place is not merely an action against a lawyer for, at worse, making an inappropriate remark but rather an attempt by the judiciary to obstruct an emerging debate on judicial corruption in Nepal. At the same time, the judiciary seems to continue to live in conservative mindset that they are above and beyond the concept of the rule of law and are accountable to law. The action of the judges to strike for two hours, urging action to be taken against NBA President Mainali, and the decision of the Judges Society of Nepal, an umbrella forum of judges in the country, to join the protesting judges demonstrate a widespread fear among these members of the legal fraternity against public debate on judicial corruption.
Sadly, judicial corruption is a menace threatening the independence of the judiciary in many countries of Asia. The Asian Human Rights Commission (AHRC) has held two regional consultations on this issue with the first consultation, “Asia: Towards the Elimination of Corruption and Executive Control of the Judiciary,” held in February 2006. Both of these consultations, which were attended by participants from many Asian countries, spent a great deal of time analysing numerous causes of corruption of the judiciary in the region. In the statement of the first consultation, the participants defined judicial corruption as follows:
“Judicial corruption concerns acts, behaviour or attempted acts that impair the search for or the submission of truth in the delivery of justice. This pertains to investigations and pre-trial processes in addition to actual trial process.
“This includes any act or omission from any source, whether bribery, intimidation or any other act, committed with intent or reasonable foreseeability that judicial or quasi-judicial orders, judgements and other issuances will result in corruption. Judicial corruption includes the acceptance of patronization offered by the people in power, leading to subversion of the administration of justice, causing bias.” (See http://www.ahrchk.net/pub/mainfile.php/books/223/ for the consultation report.)
A serious debate on judicial reforms is already belated. No serious discussion on democracy and the rule of law can take place without thorough study and debate. Radical judicial reform is a precondition for democracy. In the context of Nepal's young democracy, any impediment to a proper discourse on judicial corruption and the way to overcome it will gravely damage the prospects for the future development of democracy in Nepal.
The judiciary should not use their judicial position in any way to obstruct the discourse to establish accountability and transparency regarding the judiciary. After all, it is the judiciary that has to ensure accountability and transparency in all areas of public life. If the judiciary itself objects to a strong public debate on its own accountability and transparency, then it will not have credibility in the eyes of the people to take to task the executive in any other arena of government.
Massive protests by lawyers against deadened legal systems and practices is becoming one of the signs of hope in Asia. The lawyers' movement of Pakistan has provided a shining example of the desire of lawyers to see a clean system that can serve the best interests of the people. Perhaps in the background of the resurgence of democracy in Nepal such a movement is now very much a need of the hour.
The AHRC is alarmed by the decision and urges that any action against Mr. Mainali, the president of the NBA, should be taken by the courts only within the framework of the law and principles entrusted in the concept of due process rights with due regard to proper legal standards concerning contempt of court. Abuse of contempt of court laws, which is a common practice in many Asian countries, will be damaging to Nepalese democracy. In such abuses, the judiciary itself is the ultimate loser. We call upon the NBA, all lawyers and the people of Nepal to conduct the struggle for judicial accountability in an appropriate manner and with due regard to the importance of the judicial role for the enhancement of democracy.
Source: The Asian Human Rights Commission or the Asian Legal Resource Centre.