Dr. Baburam Bhattarai Stays On-Part 50

(Debate On Chief Justice Talking To Politicians)
Siddhi B Ranjitkar

Deliberately or otherwise some lawyers and politicians have continued their opposition not only to the formation of a government presided over by the Chief Justice but also to the Chief Justice talking to any politicians including the prime minister. Nobody opposed when three political leaders such as Khum Bahadur Khadka, Govinda Raj Joshi, and Rabindra Nath Sharma charged with corruption by the Commission on Investigation into Abuse of Authority (CIAA) just before the promulgation of an Interim Constitution of Nepal of 2007 met with the then-Chief Justice while the corruption cases against them were pending at the Special Court. Now, members of the Nepal Bar Association, and some politicians have been making hue and cry against the Chief Justice talking to politicians, and against a government led by the Chief Justice. Really, what they want: continuation of the political deadlock or political chaos to suit somebody’s interest?

I don’t really know whether the Chief Justice of the Supreme Court of Nepal or the members of the Nepal Bar Association are the authority in legal matters, whether the Chief Justice wields the power to interpret the constitution or the members of the Nepal Bar Association wield the power to interpret the constitution. However, I do know whatever the Supreme Court of Nepal makes rulings on any matters become the precedent for all to follow. I don’t think that the Chief Justice is so naïve to indulge in the matters that prohibit him to do so; so, the Chief Justice talking to prime minister concerning the legal obstacles to remove for forming a new government, and then holding elections to a new CA must be within his jurisdiction. Similarly, the Chief Justice taking over the executive power and then holding elections to a new CA must be within the constitutional limit otherwise the Chief Justice has never been positive to head a new government only for holding elections.

I think the members of the Nepal Bar Association also know these things but they have been indulging in opposing the formation of a new government headed by the Chief Justice even for holding elections. They went to the head of state President Dr Ram Baran Yadav begging him not to accept the proposal of the political parties for making the Chief Justice a new prime minister. The president has cleverly answered them, “Don’t worry about it, as there is no certainty of forming a new government under the Chief Justice. When the proposal comes to my desk then I will certainly follow the constitution, and even consult with you guys and the Supreme Court of Nepal before approving the proposal.”

Then, some guys went to the Supreme Court of Nepal, and filed two cases against the formation of a government presided over by the Chief Justice. The Supreme Court has held preliminary hearings on the cases, and following the requests of the representatives of the petitioners and the defendants, the Supreme Court has agreed on holding a joint hearing on both the cases on March 14, 2013. At the same time, one smart advocate filed a contempt of court against the Chief Justice at the Supreme Court stating the nod of the Chief Justice to hold the office of prime minister is actually the contempt of the court. First, the Supreme Court registrar refused to register the case but later on, he registered it. On March 5, 2013, hearing on the contempt of court case against the Chief Justice, a single bench of the Supreme Court of Nepal quashed the case. Now, it became a precedent that a Chief Justice of the Supreme Court of Nepal could accept the office of prime minister.

There is no lack of lawyers advocating against a government under the Chief Justice, and accusing the Chief Justice of abusing the code of conduct of judges for nodding to lead a new government for holding elections to a new CA. Recently, former Chairman of the dissolved CA Subash Nemwang joined the group of advocates opposing the Chief Justice taking the office of prime minister and accusing him of violating the code of conduct of judges. Mr. Nemwang is a professional lawyer but became the most incapable Chairman of the dissolved CA. He did not allow the members of the CA to discuss the draft of a new constitution but simply followed the decisions of the four major political parties, and left everything to their discretion making the entire members of the dissolved CA vulnerable to their political leaders. Mr. Nemwang should have understood that the CA members were elected to craft a new constitution but Mr. Nemwang denied them this opportunity. Now, Mr. Nemwang is charging the Chief Justice of abusing the code of conduct of judges, as the Chief Justice has been meeting with the political leaders and discussing the matters related to the cases pending at the Supreme Court of Nepal.

Former Chief Justice Anup Raj Sharma also joined the advocates of lawyers accusing the Chief Justice of violating the code of conduct of judges by meeting with the political leaders and talking about the matters relating to the cases pending at the Supreme Court of Nepal but Mr. Sharma had not opposed such things happened in the past. He must be a justice at the Supreme Court of Nepal when the then Chief Justice met with the political leaders charged with the corruption cases, when their cases were pending at the Special Court. At that time, he had either did not dare to oppose it or did not see it the violation of the code of conduct of judges.

Former Chief Justice Anup Raj Sharma and chairman of the dissolved Constituent Assembly (CA) Subash Chandra Nemwang on March 11, 2013 accused Chief Justice Khil Raj Regmi of violating the judges’ code of conduct and undermining the judicial decorum by holding meetings with political leaders on the matter sub-judice in the Supreme Court. “This is against the judges’ code of conduct and judicial decorum,” said former Chief Justice Sharma at a press conference on ‘current constitutional deadlock and independent judiciary’ held by the Constitutional Lawyers Forum in the Kathmandu on March 11, 2013. “This might be a matter related to the politicians so he has been holding meetings but what will happen if those accused in various criminal cases want to hold meetings with judges,” he questioned. Sharma also objected to the CJ’s consent to discuss and review the document that political parties had prepared yesterday. (Source: HIMALAYAN NEWS SERVICE, March 11, 2013)

Some lawyers have opposed the Chief Justice meeting with political leaders and the prime minister to discuss the constitutional ways and means to remove the obstacles to form a government to hold elections to a new CA. The strange thing was that the same lawyers and the members of the Nepal Bar Association failed in raising any voice against the three political leaders such as NC leaders Khum Bahadur Khadka and Govinda Raj Joshi, and Leader of Rastriya Prajatantra Party Rabindra Nath Sharma charged with the corruption, met with the then Chief Justice just before the promulgation of an Interim Constitution, and formation of an interim parliament in 2007. The CIAA had filed corruption cases against those allegedly corrupt political leaders at the Special Court. Then, the Special Court squashed the cases stating the cases were filed belatedly, and the Special Court acquitted those three leaders. The concerned political party nominated them to the members of the parliament. However, none of the lawyers spoke against such things.

The CIAA appealed to the Supreme Court of Nepal reviewing the corruption cases against those political leaders in question. The Supreme Court ordered the Special Court to review the corruption cases against those political leaders. Reviewing the corruption case, the Special Court convicted NC leaders such as Khum Bahadur Khadka and Govinda Raj Joshi of corruption. Currently, they were serving jail term at the Kathmandu jail. Unfortunately, Rabindra Nath Sharma had died but the Special Court had punished others associated with the corruption Mr. Sharma had committed.

Some politicians have been opposing the formation of a government under the Chief Justice for holding elections to a new CA. Some political leaders don’t present any alternative to a government headed by the Chief Justice, they simply opposed to such a government. What they really want might be no elections but to continue the current political deadlock. However, the CPN-Maoist-Vaidhya said that it would neither accept the government headed by the Chief Justice nor participate the elections held by him. It wanted a round-table meeting of all political parties and form a joint government with the representations of all political parties. The proposal seems to be a nice one but it is almost impossible. The Vaidhya Maoists said that they wanted the independence of the judiciary; so they opposed the Chief Justice to preside over a government even to hold elections.

Some mindless politicians have even proposed to form a government under the Vice-president. They don’t understand that forming a new government is not something they could choose and buy. They forget that either they have to follow the constitution or the consensus of the four major political parties to make and break a government. They need to understand that they cannot form a government under anybody they like.

It is hard to believe that the judiciary would be dependent when the Chief Justice becomes a prime minister. When the Chief Justice takes the office of the prime minister, he would neither have time to officiate as the Chief Justice nor would be allowed but he would return back to his office of the Chief Justice after completing the elections to a new CA. For that period, someone would be officiating the Chief Justice. Some politicians even make the fun of the statement of the Chief Justice saying he would go back to the office of Chief Justice after completing the elections to a new CA. It indicates that some politicians blindly believe in only opposing a government under the Chief Justice, as they don’t want to break the current political deadlock.

Some politicians say that the Chief Justice taking the office of prime minister could be a dictatorial but they don’t explain how he could dictate others. It is nothing but the phobia of the self-declared political leaders without having the backing of the public support. Nepal has a large number of such self-declared political leaders. They go on making political noises, and even threatened to take the issues to the streets. That is the only unconstitutional means such political leaders could see to try to meet their dream.

Some failed political leaders have been saying that the Chief Justice could not do what the political leaders have failed to do. They don’t understand that the Chief Justice needs to take the office of prime minister to hold free and fair elections when political leaders don’t trust each other. They don’t want a leader of any political party as a prime minister holding elections to a new CA. In these circumstances, the so-called leaders that have failed to remain at the top of original parties need to understand that in the current environment of not a single leader could win the trust of the others; the only alternative is to make the Chief Justice a prime minister.

However, the key to forming a new government under the Chief Justice is in the hands of the leaders of the four major political parties such as UCPN-Maoist, NC, CPN-UML and UDMF. Following the provision made in the Interim Constitution of Nepal of 2007, a consensus of these four parties could make and break any government. In addition, the Head of State President Yadav has been saying that he would agree on any subject matters only after the consensus of the major political parties on such matters. Thus, when the four political parties in question and the Head of State come together and make decisions then that become the part of the constitution.

The four major political parties such as UCPN-Maoist, NC, CPN-UML and UDMF called the all-party meeting of the political parties that had representation in the dissolved CA on March 12, 2013 to discuss the draft of the manifesto they had tentatively agreed on. The number of political parties represented in the dissolved CA had reached 28 after the disintegration of some political parties. However, the four major parties in question hold two-thirds majority. So, even though the number of political parties seems to be overwhelmingly large, their voice is just one fourth of the total strength without the four major political parties. Except for one party, all other political parties disagreed on the formation of a new government under the Chief Justice, and they have put the emphasis on forming a new government under a political leaders but their voice is minor one as already said they have only one fourth of the total political strength. So, the decision of the four major political parties should be the final even though it is fine to have the opinions of the minor political parties.

Some politicians, and the members of the Nepal Bar Association demanded the resignation of the Chief Justice before taking the office of prime minister but the former elected Chairman of the Constitutional Committee Nilamber Acharya also the professional lawyer and the NC leader clearly said that it would not make a sense of forming a government presided over by the Chief justice if he would resign from the office of the Chief Justice, as it would be just like making a former Chief Justice a prime minister; then you could make anybody a prime minister; i.

The four major political parties such as UCPN-Maoist, NC, CPN-UML and UDMF had finally agreed on 11-point understanding, and on making an amendment to 25 Articles of the Interim Constitution of Nepal of 2007 on the midnight of March 13, 2013 to form an Interim Election Council presided over by the Chief Justice for holding elections to a new CA in June if not in November. Following the agreement of the four major political parties, the cabinet headed by Prime Minister Dr Baburam Bhattarai at a meeting made a decision on recommending the agreed matters to the Head of State President Yadav, and submitted the recommendations.

At 9:00 am of March 14, 2013, Head of State President Dr Ram Baran Yadav administered the oath of the office of Chairman of the Interim Election Council to the Chief Justice Khil Raj Regmi in the presence of political leaders, members of the diplomatic missions in Kathmandu, and other high ranking officials at the office of the president at Maharajgunj in Kathmandu. Chairman in turn sworn in two other members of the council at the same event. Then, the Chairman took the office, and held a first meeting of the Council, and committed to hold elections in June. The Council would be expanded to 11 members.

The whole world greeted the Interim Election Council, as it broke the political deadlock, and would hold the elections to a new CA. So, friendly countries including the UN General Secretary congratulated Nepal on forming the Interim Election Council but the Nepal Bar Association, and the 22 minor political parties headed by the CPN-Maoist-Vaidhya vigorously opposed the formation of the Interim Election Council presided over by the Chief Justice. Leaders of the CPN-Maoist-Vaidhya and their cadres went to the office of the president at Maharajung in Kathmandu, and staged a sit-in protest against the formation of the Interim Election Council from 8:00 am to 10:00 am on March 14, 2013. Then, they imposed a traffic shutdown in the Kathmandu Valley from 12:00 noon to 5:00 pm on March 14, 2013 causing untold misery to the passengers and abusing the fundament rights of the people to travel without hindrances, to protest the formation of the Interim Election Council. The Nepal Bar Association has decided to mark the March 14, 2013 as the ‘black day’.

Prime Minister Dr Baburam Bhattarai did not tender his resignation but simply turned over the office of prime minister to the Chief Justice. Former Prime Minister Dr Bhattarai held a press conference at his private residence in Sanepa, Lalitpur to brief the public about the performance of his administration lasting 18 months and 18 days. He said that the four major political parties held the political key and padlock even though the non-political person was made the chairman of the Interim Election Council. He also said that he had twice set the date for holding elections but the head of state did not issue the election-related ordinances.

In the current context of the political parties disagreeing on forming a new government under any political leaders, the only alternative is to form a government presided over by the Chief Justice to hold elections. The elections are the only means to institutionalize the Federal Democratic Republic of Nepal. Everybody needs to strive for the elections and seek the people’s mandate to institutionalize the Federal Democratic Republic of Nepal promulgating a new constitution.

Immediately, after the Chief Justice took the oath of the office of the Chairman of the Interim Election Council, the office of the Chief Justice fell vacant following the Article 103 of the Interim Constitution of Nepal of 2007; senior-most justice at the Supreme Court of Nepal Damodar Prasad Sharma took over as the Acting Chief of Justice, and started off the administration, and he took over the office of the Chairman of the Judicial Council, and appointed Ramkumar Prasad Shah the member of the Judicial Council following the seniority.

The Supreme Court of Nepal had set March 14, 2013 for the hearing on the cases filed by Bharat Jangum and Advocate Om Prakash Aryal against the formation of the government under the Chief Justice by the Special Bench of Ramkumar Prasad Shah, Girish Chandra Lal, and Sushila Karki but Ramkumar Prasad Shah became the member of the Judicial Council after Damodar Prasad Sharma took over as Acting Chief Justice. Consequently, the Special Bench could not hold the hearing, as the petitioners had made the Judicial Council, too as a defendant.

Speaking at the event held in Bhaktapur on March 15, 2013 to award the senior-advocate titles to some advocates, Acting Chief Justice Damodar Prasad Sharma said that not even the shadow of the Chief Justice Regmi officiating as the Chairman of the Interim Election Council would fall on the administration of the Supreme court of Nepal not to mention his interferences refuting the claim of some politicians and lawyers for the possible interferences of the Chief Justice in the business of the Supreme Court of Nepal..

March 16, 2013