October 22, Kathmandu. Former General Secretary of Nepal Bar Association Sunil Kumar Pokhrel He is also the coordinator of the Bar Human Rights Committee.
Criticizing the actions of Chief Justice Cholendra Shamsher Jabra, he lamented that the judges had boycotted the session unannounced by blocking the hearing of all the cases.
Online news workers on the recent stalemate in the judiciary, including solutions Prince Shrestha And Krishna GyawaliEdited excerpt from Advocate Pokharel’s conversation with:
How do you see the tenure of Chief Justice Cholendra Shamsher Jabra?
When Cholendra Shamsher Jabra was appointed as a judge, I was the general secretary of the Nepal Bar Association. We had said everything through a press release on April 3, 2071 BS. In December 2075, he became the Chief Justice.
When he came as the Chief Justice, two or three things seemed uncomfortable. When his name was approved, a lawmaker from the ruling party said, “You have passed this knee. Impeachment also has its knees, please work in a manner. If not, the knee of impeachment may come, ”he said.
Deepak Raj Joshi, who was recommended to the Chief Justice before him, was rejected in the parliamentary hearing, but was working as a judge in the Supreme Court. After Omprakash Mishra became the Chief Justice, he was working to give him a seat and so on. The next day, Jabbar removed the number one judge’s plate and replaced him with the current senior judge. He also invited the current senior judge Deepak Kumar Karki as a member of the Judicial Council.
The same thing happened at the Reconciliation Council. Instead, the chief justice may appoint a judge to the conciliation council. However, there is a constitutional provision that the senior judge should be a member of the Judicial Council. From the point of view of the rule of law and constitutional supremacy, that task was uncomfortable.
The best moral decision is to resign. Because people from all over have demanded resignation. Those who have appointed themselves are also saying that they should resign. So in the present situation, it is a moral decision to walk around saying ‘do the rest or not’.
At that time, it was not easy to speak in favor of a judge who was rejected by the parliament, so many did not speak. But those who advocate the rule of law must show a kind of stability. The basic values of the constitution and the law should not be abandoned even in difficult times. Seen in this light, his early tenure seemed a mess.
After a while, he started making appointments. On closer inspection, there is a question of merit in his appointments, there is a question of integrity. Those with questions of competence can be qualified by training, but those with questions of integrity can never be improved. Other parties are also involved in that appointment.
Because yesterday, the then Chief Justice Sushila Karki had also mentioned the names of Barshaman Pun and Ramesh Lekhak. Those who were appointed at that time are now happily running in the high court. But yesterday was bad, today I can not say. We need to improve as much as possible.
It seemed that some attempt was made to improve the situation of corruption. For example, the case of 33 kg of gold in Biratnagar was started by the judge. Three judges of the Pokhara High Court were sentenced to life imprisonment for violating the jurisdiction. But that did not last. The order was not corrected in the Supreme Court.
So while trying to improve the cover, it seemed to be for another purpose. Then gradually political instability began. At the same time, he had a heated argument with politicians. He doesn’t say that, it happened to everyone.
It was during this political upheaval that the Chief Justice began to negotiate. It is being commented that this issue is unforgivable for the judicial leadership.
There is no visible evidence of that (negotiated). But if you take the first step, things will show. It has both sides. One, (Chief Justice seeks part) became a beggar. On the other hand, if Uta (those who led the government) ran away, even if the court was not in my favor, at least it would not go against me.
We started this process with the Second Amendment to the Interim Constitution of 2063, where we arranged for parliamentary hearings of judges and chief justices. From there, constitutionally, we legitimized the rise of political parties with judges and chief justices. Lately, politics has become dishonest or inactive. And he started taking the legitimacy of his every decision from here (Supreme Court). The appointment of a GM (General Manager) will also be brought here and the court has spoken.
This was the case when Lokman Singh Karki was in power, especially on the issue of big corruption. Before awarding the contract to anyone, the contractor would file a complaint through his dummy person. The authorities drag the file, study for 15/20 days and there is nothing in it, the process can be taken forward. Then whatever happened happened.
If there is any complaint that something went wrong while awarding the contract, it has already been settled by filing a complaint, we would not take it. Lately, Nepal’s politics has done the same. Bringing his grievances to the Supreme Court, he started taking legitimacy from here. The obligation of the court is to decide whether it happens or not after having a case. Even if he gives a lawful decision, sometimes the ruling party and sometimes the opposition party can benefit. That is why it is alleged that it was sold.
In the case of Chief Justice Jabra, not only the allegations, but also the constitutional appointment does not seem to have sought / participated with the Minister?
He seems to have publicly acknowledged that. He has admitted that he took people through the Constitutional Council and met Prachanda.
He had not even met the Chief Justice of the High Court since he became the Chief Justice. He had set a different position from the previous Chief Justice by saying, “I will not meet you. Come through the Chief Registrar.” That must have been fine in some ways. But it is not uncommon for the Chief Justice, who does not meet the Chief Justice of the High Court, to meet the chairpersons of certain parties for exchanging good wishes. Again in such a crisis!
This means that the way in which the 19 judges of the Supreme Court have questioned Jabra’s leadership is confirmed in a way. Isn’t it
There is no dispute that the statement of 19 judges saying ‘I will not sit in the bench you have appointed, I will not sit in the bench with you’ has become 10 times heavier on the Chief Justice than what we have written, printed and spoken. And, that’s where the seriousness of the current controversy lies.
If that issue is settled, then other issues, his ability, qualification, the issues he has done will come up whether he will be eligible for impeachment or not. The most basic issue is the gentle disobedience of the judges. He (Jabra) should take that seriously.
He has publicly demanded from the streets that I will not resign, I have come from the constitutional path, there is a constitutional way to remove it, right?
We will maintain our position on disobeying or asking for resignation after he has asked us to remove it in a lawful manner, but it does not seem to do much. Either he (Chief Justice Jabra) should have been a U-turner. If he thinks he is a uterus, he should have asked for his resignation. If not, this issue should be taken up with the Parliament. It will be started by the parties. The parties are told by the stakeholders of the judiciary.
But the parties are silent. If the parties do not come forward, the MPs cannot come forward themselves?
Yes, a member of parliament can take a resolution. That is not the impeachment, but the issue enters Parliament. The sovereign parliament, which can amend the constitution, can remove the judge, the chief justice.
If the parliament gives a clean chit that this issue is nothing! Sometimes establishing an issue is too big, if you start looking at victory or defeat, life will not work. Because we are not in a position to make decisions. A serious allegation was made against a Chief Justice, which was confirmed by facts and figures, but we are not defeated if Parliament does not remove it. Our issue is established, only the result has not been reached.
Instead of saying that I will face impeachment, the parliament will not be able to give results because the political parties are quarreling. Is it possible that there is a hung parliament?
Even before his statement, a party which, if not supported, would not have reached two-thirds majority, should have settled the matter with the court, not ours. If an indictment is to be filed, why should one be charged with five charges? The UML is so decisive that a two-thirds majority in Parliament would not be enough for the impeachment without him. Even the Chief Justice knows that two-thirds is not enough against me, I should not step down.
Secondly, he (Jabra) may have thought that at least I would stand in Parliament and keep my word. If I face impeachment instead of resigning secretly, I will get a chance to stand and speak in the parliament.
Thirdly, the allegations leveled against me may not be substantiated or the parties may not come forward saying that there could be political damage like filing a motion of impeachment against Sushila Karki.
But my conclusion is, let’s do what we have to do. Don’t be late now. Confusion must end somehow.
The latter has three sides: the chief justice, the disgruntled judges and the bar association. Who played what role to remove this confusion?
Chief Justice Jabra does not have many options. Dissatisfied judges disobeyed him. One of the alternatives of the Chief Justice is to address the demands of the judges and bring them back to the bench. I don’t think that’s possible. However, since the judiciary is a place where people with a liberal outlook and heart can live, I have talked about the possibility.
But if the Chief Justice is unable to bring 19 colleagues back to work in confidence, it will be considered a weakness of the leadership. Failure to address this will open the way for the greater good of the judiciary. To pave the way is to take a long leave or to resign. Otherwise, the judges will have to agree to a dignified exit, as he said.
Judges also have limited options. Until Chief Justice Jabra leaves, this may be an option. At present, they are only looking at habeas corpus petitions. This is only for a short time. It is not possible to go like this for a long time.
At that time, there may be a way for them to conduct other sessions without the Chief Justice. They can also move forward by looking at the issues of the people and other issues without sharing a bench with Chief Justice Jabra. By doing so, the essential service of the Supreme Court will not be affected even if the gentle disobedience goes on for a long time. And, they are also successful in conveying the message that 19 judges are responsible for the issues and interests of the people.
Third, the Bar Association has a number of agendas for restructuring the judiciary. But priority has been given to the departure of Chief Justice Jabra and this issue has been taken up all over the country. Nepal Bar has no choice but to withdraw from this agenda immediately.
Therefore, I see the possibility that the Bar movement will not stop even after the dispute of the Chief Justice has been resolved. Because from the report of the Karki (led by Judge Harikrishna Karki) committee, it seems that the bar has to struggle with many other demands. Barr also has to tell other legal practitioners about his decisions and agenda at the national conference.
Is it possible that if there is an agreement between Chief Justice Jabra and the Supreme Court, will Bar insist on resigning or move on to other restructuring agendas? There may be a dilemma. But it is difficult to go back because of the formal decision.
The movement gained momentum due to the disobedience of the Supreme Court judges. Is it possible to reach an agreement on the option of not sharing the session now?
The best moral decision is to resign. Because people from all over have demanded resignation. Those who have appointed themselves are also saying that they should resign. So in the present situation, it is a moral decision to walk around saying ‘do the rest or not’. But he refused to resign. No matter how much we shout, all the MPs are silent.
Even if the parliamentarians do not resign, we, the friends of the court, have tried to suggest a way for less damage to the court and the service recipients. With that option, the post of Chief Justice became immortal, all the allegations against him were washed away, and there is no question of morality.
Even if Chief Justice Jabra does not sit in the bench, will there be any doubt about the bench appointed by him?
In my opinion, the issue of bench shopping seems to have come to an end at least during the tenure of Chief Justice Jabra. Because at least two judges are needed to decide the case. He doesn’t even have one.
How can there be bench shopping even now when the Chief Justice is on one side and all the other judges are on the other side? If the question of bench shopping is raised more than this, it is considered that injustice has been done to the remaining 19 people. You can take it as natural or satirical.