Goodbye, Your Honour

  • The outgoing chief justice’s interest in particular cases seems unusual

Dec 4, 2018-

Chief Justice Om Prakash Mishra is due to retire barely three months after being appointed to the post. As per the law, the chief justice (CJ) can remain in office till 65 years of age. The Judicial Council must name a new chief justice by January 2019, and it has sent a list of probable candidates to the secretariat of the Constitutional Council.

As per general practice, the retiring CJ goes on leave a month before his term expires and stops hearing important cases. But Mishra, whose term ends in 37 days, has been allocating trial dates for important cases like the Ncell tax evasion case.

In principle, the CJ is expected to act independently and in an unbiased manner. Given that, the outgoing CJ’s interest in particular cases seems unusual. This raises moral questions regarding his intentions and makes one wonder if he has any vested interests. In fact, research conducted by the Supreme Court Bar found that CJs are the main source of corruption in our judiciary.

The concerns raised by civil society and the media over Mishra’s recent actions are warranted, especially as rampant corruption has gone long unchecked in Nepal’s judicial history. In 2007, the judicial sector was listed as the most corrupt institution in Nepal by Transparency International. And though fundamental changes in our political system have occurred in the last 11 years, the issue of corruption in the judiciary resurfaced in national debates earlier this year when the previous CJ, Gopal Parajuli, became mired in controversy regarding discrepancies in his date of birth and doubts over his academic qualifications.

Without a clearly defined supervisory body to hold those appointed to the Judicial Council accountable for their actions, CJs will continue taking advantage of the system and corruption will persist. Over time, these cases have discouraged honest and sincere people, even in institutions like the court, and have promoted corruption in different layers of society. Cases of incompetent and undeserving people being appointed to the Supreme Court have continually come to the fore. For example, a few years ago, the Judicial Council failed to appoint qualified, competent and fair judges like Prakash Osti and Bharat Raj Upreti to the Supreme Court. Since they were not made permanent at the Supreme Court, it paved a way for Gopal Parajuli—a controversial figure—to assume the role of CJ.

In another example, the then CPN-UML  and Nepali Congress both were found packing the judiciary with party loyalists over well-deserving candidates when it came to appointing them to the Appellate Court. But the CPN-UML appointees were found visiting the party office in Balkhu following their appointments to pay allegiance to the party leader. Hence, instances like these seriously make one question the independence of our judicial system.

When the Supreme Court, often considered the ‘second arm’ of the constitution, does not guarantee impartiality when rendering decisions, practicing corruption and limiting the independence of the court are both legitimised. This legitimisation trickles down to all other institutions and sectors. Maintaining integrity and upholding ethics should be the basic principles guiding the CJ. The main priority for Mishra’s successor should be regaining public confidence in the institution by upholding the most primary principle of any judiciary: Abide by the law.

Published: 04-12-2018 07:50

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