Unnatural encounters

  • Karki and Comey, as leaders of independent judicial institutions, showed immense courage in the face of huge political pressure
- AJAPA SHARMA

Jun 21, 2017-Individual demonstrations of ethical and moral stands become particularly powerful when the formal structures that are built to sustain our collective norms and values are subordinated to political interests. We saw two such demonstrations recently, one very close to home, and the other in a country that many among of us admire as the “leader of the free world”—the United States of America. In a series of interviews with Nepal magazine and Dil Bhushan Pathak of Kantipur Television, former chief justice Sushila Karki gave damning accounts of how our political leadership continually tried to influence her and the independent judiciary. 

Across the globe, in the United States, the ex-director of the Federal Bureau of Investigation, James Comey, gave a sensational testimony of his encounters with president Donald Trump. In front of a special counsel—a bi-partisan body formed by prominent senators of the US to investigate Russia’s involvement in the US elections—Comey described how the president asked for his loyalty and even suggested that a case on Michael Flynn be dropped. 

Demonstrations of professionalism

We cannot directly compare these instances given the different political and cultural contexts in which these events unfolded. However, Karki’s interviews and Comey’s testimony are comparable as public articulations of those who led independent judicial institutions but faced an inordinate amount of pressure from their political leadership. These events are also comparable to the extent that we are able to draw implications that are productive to us here in Nepal as to how we may envision and shape democratic institutions in order to protect public interests. 

While we could only imagine the professionalism required to lead the judicial institutions of democracy, Karki and Comey demonstrated this professionalism in more than a few ways. With immense courage, they disclosed how the political leadership made constant efforts to influence their work. In her interview with Nepal magazine, Karki explained that, as the then chief justice, she had three meetings with the then prime minister Pushpa Kamal Dahal, which she initially believed were normal interactions between the heads of the major democratic institutions of the nation. However, contrary to how she perceived these meetings, Dahal began to claim that he had brokered agreements with the chief justice, at which point she refused to see him further. 

The discomfort of meeting the head of the executive in a manner irregular to expected formal interactions and the desire to avoid such meetings also pepper Comey’s testimony. In the written document he released to the media prior to his hearing, Comey described awkward encounters over dinner and in private meetings with the president, following which he asked Attorney General Jeff Sessions not to leave him alone with the president. 

Impinging on boundaries

As such, these experiences of unease are testimonies of feelings triggered by the impingement of these professional boundaries. In refusing to normalise these encounters, and in recounting their unease, both Karki and Comey reaffirmed their professionalism, and their commitment to the larger norm of separation of powers. Evident in both cases is also the public naming and shaming of the political actors who Karki and Comey felt placed undue pressure on them. While we do not know the extent to which such naming and shaming fundamentally effects the persons named and shamed, these methods are fundamental to the process of demanding accountability of public persons in question. 

Despite their experiences, Comey and Karki reaffirmed their faith in these institutions and in publicly doing so, reignited our faith in these organisations. Even as Karki implicated some of her colleagues in colluding with political actors, she continued to assert that the legal system was critical in ensuring that public interests were maintained. Comey went on to say that no one in the FBI was indispensable and that the body itself was ensured the protection of the American people. It was not only their expression of faith in these public institutions that we witnessed, but also their ability to speak the truth. Their courage and commitment after the termination of their tenure ignited a respect for public service among those who witnessed their testimony. 

Obvious distinctions

Even as we draw parallels between Karki and Comey’s experiences and their public articulations of the same, it becomes imperative that we speak about the distinctiveness of each case. In Comey’s case, even though the most sensational parts of the testimony came out through privately owned media, he gave a hearing in front of a senate counsel that at least publicly claimed its bipartisan position. What is most striking to this viewer is the significance of Comey’s claims that after each meeting with the president, he wrote extensive memos that he shared with his colleagues at the FBI. These memos are considered credible evidence of conversations in the court of law. Presently, the case of obstruction of justice seems feeble—if not non-existent—against Trump. However, if the counsel is truly bipartisan and chooses to further investigate the case, these memos would be critical evidence. 

Such mechanisms that document any atypical interactions are critical for strengthening public institutions. One of the fundamental weaknesses of our 

democracy is that our mechanisms to document political processes and interactions are severely limited. We do not know if Karki holds any such documentation of her interactions with the political leadership. Regardless, Sushila Karki’s recent testimonies appeared in privately owned news media and not in the hearings of an assembly. The legal ramifications of her interviews seem minimal, regardless of how damning they may be to the political class of our country. The political collusion among parties is so intense that there is no formal response to Karki’s testimony of the undue political involvement with the judiciary during her tenure. 

We are yet to see what global developments emerge as a result of Comey’s testimony. It is very likely that former FBI director Mueller, who is in charge of the Russia investigations, will probe further into the possible areas that warrant 

investigation that Comey’s testimony shed light on. However, the extent to which 

this investigation finds the full support of the American political class is yet to be seen. Here, at home, the prospects of our political class realising that Karki’s interviews are grounds on which serious investigations can be launched against political actors who currently sit in our honourable Parliament are feeble. Nevertheless, these interviews and testimonies where two legal professionals showed grit, passion and courage to defend their profession and its ethics are reminders to the general public that our public institutions and our justice system are worth defending. The least we can do is demand answers from those who claim to lead and protect them.

 

- Sharma is a research scholar at the Centre for Historical Studies at JNU

Published: 21-06-2017 07:59

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