Editorial»
SC must show commitment to constitution
JAN 19 - Shambu Thapa, who has been practicing law since 1979, has been recently elected as president of the Central Committee of Nepal Bar Association (NBA), a forum of over 10,000 professional lawyers in the country. Thapa hails from Udaypur and is a “left” lenient lawyer. He needs no introduction in Nepal’s legal arena as he appears more eloquent in pleading cases in courts. Many of his colleagues claim he is one of the few most influential lawyers in the country. Thapa spoke to The Kathmandu Post reporter Kiran Chapagain, shedding light on the current state of legal system. Excerpts:
TKP: Will you have any difficulty to work with the democrats, who are in a majority?
Thapa: No, because we are all lawyers and want to work for lawyers across the country.
TKP: As the new president-elect of NBA, how have you planned to reform NBA?
Thapa: Bar should move forward professionally and vocationally. This was also the main election plank. For this, efforts will be put to solve the problems of those Bars based outside the valley. Their problems are different from the problems of the valley based-lawyers. The lawyers outside the valley are deprived of law materials. Arrangements will be made to address their problems.
Besides, to broaden the scope of law practitioners, three things will be done. First, we will demand for notary public for lawyers. Second, we will raise voice for the presence of lawyers in quasi-judicial institutions where cases are settled. Lastly, initiatives will be taken to scrap the provision in the Lawyers Council Act 2050, since the provision allows persons, who have no law background, to practice law. The only “doctors of law” are lawyers. It is not at all a healthy practice in this 21st century to let others, who have no legal background, become a legal professional.
TKP: How are you preparing for the professional wellbeing of law practitioners?
First, as I have already said, there is a gap between the valley-based lawyers and lawyers outside the valley. Due representation will be given to lawyers outside the valley in different committees of the Bar to be constituted, irrespective of their ideological inclination. There will be no political colour in such representation.
Secondly, Bar will request different law firms to provide opportunity for novice lawyers. Similarly, we will formally approach business institutions to get the lawyers employed there.
TKP: Do you agree novice lawyers are exploited by law firms, and by even the bench?
Thapa: The novice lawyers had raised this issue during the recently held elections. Now I am thinking to hold workshops to understand their problems and draw up strategies in order to solve the problems. Secondly, we are organising training programmes for such novice lawyers. Finally, I will request the bench not to ignore the novice lawyers.
TKP: How serious, do you think, is the present constitutional stalemate?
Thapa: Parliament is the heart and the epicentre of the Constitution. Though we do not have parliament, the Constitution should be made active. The current stalemate should be ended through the use of the Upper House. The executive can be formed by the Upper House.
TKP: Do you see any NBA’s role to resolve the constitutional crisis?
Thapa: The supremacy of the Constitution should be maintained at any cost. At a time when the constitution is not active, the constitutional system becomes lame. So whatever has been made passive should be activised. The new Bar leadership will play the role of an aide to make the constitution active. But like political parties, we will not chant slogan for this.
TKP: The judiciary is being blamed for not playing the role that it should have played in order to end the constitutional stalemate in the aftermath of October 4?
Thapa: Sometimes, the constitution is violated. In such a situation, the judiciary comes into controversy. It is also dragged into controversy with the noble cause of ensuring the proper functioning of the constitution, which is natural. But, in the post October 4 period, the judiciary rejected a number of writ petitions on public concern issues. To reject means to deny hearing. Denial of hearing means to decline to listen to writ petitioners. The writs have been rejected by the judiciary’s administration, which is unfortunate.
The Supreme Court (SC) should have entertained the writs and should have shown its commitment to the Constitution. Had SC accepted the writs, it would have had an opportunity to show that it was committed to safeguard the Constitution in order to maintain the supremacy of the Constitution. It seemed that the judiciary could not accept the people’s rights to hearing positively. In my opinion, it is not a good practice.
TKP: How does Bar ensure independence of judiciary to eliminate corruption and irregularities within the judicial system?
Thapa: Your question implies many things, even to the latest remarks of the Chief Justice Kedar Nath Upadhyaya. I should try to answer the CJ’s remark recently that held lawyers responsible for corruption and
irregularities.
There might be non-transparency, corruption, bad practices and other irregularities within the judiciary and among law practitioners. SC should own responsibility for the “judicial impurities” among judges and other employees in the judicial service since it is the guardian of the Constitution. It should not blame other (lawyers) for this weakness.
These “distortions” within the judiciary cannot be solved by holding lawyers responsible and vice versa. The Supreme Court should try to eliminate the weaknesses of its judges and employees. The Chief Justice, who is the chief of the Judicial Council, and other senior justices of SC, who are the members of the Council, should bear greater responsibility to address these distortions and irregularities within the judiciary. Even SC should not hesitate to take actions against those who are responsible for the “maladies” in the judicial sector.
Similarly, the Bar should also take initiatives to address the weaknesses seen within the judicial institution. The Bar is ready to and will take actions against lawyers who encourage corruption, maintain non-transparency or are involved in irregularities.
In short, all should be positive to address the weaknesses seen in the third estate of the state, instead of raising accusing fingers at each other. Both should realise their weaknesses and bear responsibility to solve the problems.
TKP: Do you think SC is playing its role as guardian?
Thapa: SC is the preserver of the Constitution. It is the place for hearing. It should have made its stance clear that the Constitution is still alive. But in recent days, instead of preserving the constitution, it has been rejecting writs on issues of public concern, which means it is declining to take its responsibility as the guardian court.
TKP: Following the recommendation of the Constitutional Council for the single post of the Chief Election Commissioner, a growing distance between the Bar and the bench has been realised. Similarly, the Chief Justice recently blamed lawyers for corruption and other irregularities, another instance of evident distance between Bar and bench. What is your comment?
Thapa: I do not think that there is a distance between the Bar and the bench. It is natural for the Bar and the bench to have their own interpretations regarding any legal issues. This does not necessarily mean that the relation between the Bar and the bench is tempered one.
TKP: It is frequently heard about the SC’s precedents contradicting to each other. It is also heard in many cases in which verdicts are given without respecting the earlier precedents. What do you think on this regard?
Thapa: We will initiate a tradition of studying the verdicts of SC by a group of experts, which will evaluate whether a particular verdict was delivered in a right way or not.
TKP: What do you have to say over eroding public faith in judiciary?
Thapa: We should avoid this type of negative attitude. We all should show our commitment to the judiciary.Posted on: 2004-01-20 04:02
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