Sunday, June 26, 2005


Controversy over CJ -editorial
Under the article 86.1 of the Constitution of the Kingdom of Nepal 1990, the Supreme Court shall be the highest court in the judicial hierarchy. All the other courts and judicial institutions of Nepal, other than Military Court, shall be under the Supreme Court. The Supreme Court may inspect, supervise and give directives to its subordinate courts and other judicial institutions.
Article 88 confers upon the Supreme Court extraordinary jurisdiction commensurate with its status in the constitutional system, and to allow it to enforce fundamental rights and respond to the directive principles and policies of the state.
Whatever the system may be, the judiciary is able to deliver the justice to the people defending fundamental rights of the people. From late B.P. Koirala to his many other colleagues have knocked the door of judiciary against the atrocities of state.
Nepal's judiciary follows the practices like that of other democratic countries and it adheres to the principal and ideology of all democratic countries. US chief justice Marshall says, “The province and duty of the judicial department, to say what the law is.”
All chief justices after 1990 are taking more facilities than they are entitled by the law. All chief justices from Biswonath Upadhyaya to the recently retired Mohan Prasad Sharma, who is to be retired in a couple of days time, are taking the vehicle facility against the law. According to reports, chief justice Sharma is using three more cars in addition to one official Mercedes Benz. According to the regulation any chief justice is entitled to only one vehicle. (Nepal Samacharpatra, December 12, Sunday 1999)
Former Chief Justice of the Supreme Court Bishwa Nath Upadhayaya served the Supreme Court for 25 out of the 40 years which he devoted to the legal field. The chief of the drafting team which prepared the present Constitution in 1990, Upadhayaya also headed the eleven- member jury that delivered the landmark verdict of reviving the House of Representatives,dissolved by the first-ever communist PrimeMinister Manmohan Adhikary. former Chief Justice August 28 verdict reinstating the House of Representatives did in 1995. The Communist Party of Nepal (UML), which was in power then , still holds that as a black verdict.
Former Chief Justice Mohan Prasad Sharma's period , was the worst period between court and NBA. Many lawyers think that time was a high rate of coruption in court . NBA announced one day pen down program agianst CJ mohan parasd sharma .
Chief Justice Mohan Prasad Sharma has said that the court could do nothing to stop the lawyers from resorting to strike. Sharma was talking to BBC on the proposed strike by lawyers. The lawyers of the country have planned for a pen down strike next week to oppose corruption in justice sector. The strike has been called by Nepal Bar Association. (Sarathi, Friday, July 30,1999)
Chief Justice Hari parsad Sharma, addressing a conference of the justices of Asia and the Pacific region held on March 20-24 in Australia, had defended the February 1 royal move and disparaged the political parties. He had also urged the international community not to criticize the royal move and support Nepal. Chief Justice Hari Prasad Sharma in his address ,said His Majesty the King took the 1 February initiative to teach political parties a lesson.Chief Justice Sharma also told a programme His Majesty enforced direct rule because the rule of political parties went beyond the rule of law.
The chief justice found himself in hot water over those comments, as he was accused of making a “political speech,” something he as the chief justice should not have done. He was also accused of failing to preserve the independence of the judiciary and violating the code of conduct of judges.
Defending his version about Australia CJ Hari prasad sharma quote "National security is the responsibility of the executive government, what action is needed to protect it’s interests is… a matter upon which those upon whom the responsibility rests, and not courts of justice, must have the last word. It is par excellence a non-justiciable question. The judicial process is totally inept to deal with the type of problems which it involves.” [Council of Civ. Service Unions v. Minister of the Civ. Service, AC 374 (1985)]" published in kantipur 2005-04-06 by talking with CJ sharma“Those who are responsible for the national security must be the sole judge of what national security requires. It would be obviously be undesirable that such matters be made the subject of evidence in a courty of law or otherwise discussed in public.” (The Zamora case, [1916] 2 AC 77, at 107)published in kantipur 2005-04-06 by talking with CJ sharma.
But still he forget that this two precedent cannot support his view , because when CJ start to give speech as a political person then what will be the left . and how could he forget The 19-point code of conduct of judges endorsed by the Supreme Court, the apex policy-making body of the judiciary, considers it unethical for justices to speak publicly on political issues.
Obviously when the Chief Justice of the apex court says something with a political connotation, it surely affects the very independence of the Judiciary.Chief Justice is the highly respected post and people regard the holder of that post no less than as the God. Court is the last resort for people if they couldn’t get justice from executives and legislative. Judges give their finest verdicts, even in adverse situation, which sometime can be against powerful state.
"Justice without power is inefficient; power without justice is tyranny. Justice without power is opposed because there are always wicked men. Power without justice is soon questioned. Justice and power must therefore be brought together, so that whatever is just may be powerful and whatever is powerful may be just." Blaise Pascall.
So question will be arise again and again to all, who will become the chief justice , if he will be free from Controversy .

Next constitutional crisis
Kathmandu june 26- chief justice Hari parsad sharma is retiring on next month after he turns 65, the age limit for Supreme Court chief justices, said news reports. Just as was the case of the committee that was to recommend new members for the national human rights commission , the Constitutional Council that recommends names for the post of chief justice is missing key members. The council is headed by the prime minister and also includes the leader of the opposition in the Parliament, both of whom are missing.
In the case of the NHRC, the government amended the act that dictated how new members would be appointed, filling in for those missing from the recommendation committee. Though there are speculations that something similar might be done for the appointment of the chief justice as well, there are doubts over such a move.
“There is a tough question as the country is already facing a grave constitutional crisis,” former Attorney General Motikaji Sthapit was quoted as saying by the Himalayan Times Saturday. “Most of the decisions have already been taken unconstitutionally and as such the people as well as the Supreme Court should think twice about such issues.”
“The King may invoke Article 127 again to assign any vice chairman to head the Constitutional Council for the purpose, but that would be unconstitutional,” said Advocate Purna Man Shakya.

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