Siddhi B. Ranjitkar: Nepal Lawyers' Conference

A four-day-long Tenth National Conference of Legal Practitioners held by the Nepal Bar Association (NBA) on the occasion of its golden jubilee started off at the Birendra International Conference Center (BICC), Kathmandu on Wednesday, March 1, 2006 with the theme “Human Rights, Rule of Law and Inclusive Democracy: Resolving Conflict". Such a national conference of lawyers is held every three year. The tradition of the NBA was to invite the Chief Justice of the Supreme Court of Nepal to inaugurate such a conference. This time, NBA did not invite the Chief Justice, Mr. Dilip Kumar Poudel, because he appointed five pro-palace legal professionals to the vacant temporary positions at the Supreme Court on the recommendation of the Judicial Council ignoring the recommendations made by the NBA for the appointments and without consulting it. Since then, the NBA has been boycotting the Chief Justice, and one of the pro-palace Justices, Mr. Pawan Kumar Ojha, who, as an Attorney General, had defended the controversial Royal Commission on Corruption Control (RCCC) at the Supreme Court hearing.

Senior Justice at the Supreme Court, Mr. Anup Raj Sharma inaugurated the conference with a ceremony. Senior Justice Sharma was a member of the five-member Special Bench of the Supreme Court of Nepal that gave verdict on the RCCC on February 13, 2006, declared it ‘unconstitutional’, and pronounced that the sovereignty and state power of the kingdom of Nepal vested in the Nepalese people, not with anybody else. About 3000 lawyers and invitees representing other professional organizations participated in the four-day conference.

Inaugurating the conference, Senior Justice of the Supreme Court of Nepal, Mr. Anup Raj Sharma said that the sovereign Nepalese people should be left to decide what type of democracy they want in the country. Addressing the participating legal practitioners and others in the conference, Senior Justice Sharma said, “No one who believes in people's sovereignty has the right to question the people's right to decide." Addressing the conference, other constitutional experts, and lawyers representing 81 NBA branches urged the King to respect the recent Supreme Court's verdict on the RCCC by stepping down from the post of chairman of the Council of Ministers. "The king must accept the verdict, which is the first duty of the king. He must quit the post of chairman as per the verdict," former Supreme Court Justice and a member of the committee drafting the current constitution, Mr. Laxman Prasad Aryal said. Senior advocate Basu Dev Dhungana said, "If the verdict were to be ignored, there would be no solution to the problems dogging the nation.” NBA President Shambhu Thapa suggested the King and former army generals who are believed to be advisors of the king, not to interpret the constitution as they like it. "Constitution should not be interpreted by the King; the Supreme Court is the ultimate interpreter of the Constitution," President Thapa said. Addressing the conference, Commissioner of International Commission for Jurists (ICJ), Dato' Param Cumaraswamy questioned about the insufficient investigation into the Dorambha killings and murder of Maina Sunuwar under custody of the Royal Nepalese Army (RNA). "ICJ is concerned about inadequate investigations into human rights violation by security forces and inadequate punishments for those found responsible," Commissioner Cumaraswamy said, "Security forces accused of human rights violations should be tried in civilian courts." [1]

Various legal professionals participating in the four-day long 10th National Conference of NBA said that human rights, rule of law and inclusive democracy are the three key factors to end the ongoing conflict in the country. Senior Justice of the Supreme Court and Chief Guest at the conference, Mr. Anup Raj Sharma said, "Until and unless we ensure human rights of the citizens, establish rule of law and bring-about democracy that treats people of all castes and creeds equally and involves them in decision making, sustainable peace cannot be restored." He said, "such an environment is possible through political means and Nepal Bar Association can play the role of a catalyst." He also reiterated his commitment to uphold human rights. Participating in the conference on behalf of the UNICEF, Sumai Sakai urged lawyers to take care of rights of children victimized by the conflict. Member of Norwegian Bar Association, Merete Smith said, "Due to the conflict, the country's judicial system is deteriorating." "Some years ago, we had learned that there are only three districts without lawyers but now the number has increased to 17 districts, which is rally sad," she said. Representative of European Union (EU), Brian Fernande said that respect of human rights, establishment of rule of law and good governance are the main factors identified by the EU for the success of the country. He also expressed their commitment to continue the support for activating those factors in the country. Chairman of Association of International NGOs (AIN) in Nepal and Country Director of Action Aid Nepal, Dr Shivesh Chandra Regmi expressed solidarity with NBA in its efforts on restoring the rule of law and democracy in Nepal. He said due to the continuous human rights violation and increasing cases of impunity, the human rights situation in the country has worsen, and the socially excluded and poorest of the poor have been the most affected by the decade-old conflict. [2]

Vice chairman of NBA, Mr. Sher Bahadur KC said that NBA would not compromise with anybody on the issue of supremacy of the country’s constitution. He also called upon the king to give up his direct rule by honoring the recent verdict of the Apex Court on the RCCC. President of the Federation of Nepalese Journalists (FNJ), Mr. Bishnu Nisthuri lauded the role of the lawyers in restoring the rule of law in the country. Alleging that a conspiracy was going on the bank of famous lakes and ponds in Nepal to sideline people’s sovereignty, Mr. Nisthuri said that lawyers, journalists and other professionals would continue their fight against regression until democracy, human rights and rule of law was fully established in the country. [3]

Supreme Court Senior Justice Mr. Anup Raj Sharma said, “People have authority to change the Constitution if they want. If they want inclusive democracy, they can demand.” Senior Justice Sharma was speaking at the inaugural session of a four-day Golden Jubilee conference of the Nepal Bar Association. Former Speaker of House of Representatives, Daman Nath Dhungana, Former Minister for Justice Subash Nembang, Former justice of Supreme Court Laxman Prasad Aryal and current NBA President Shambhu Thapa asked the King for immediately dissolving the current government in response to the Supreme Court's verdict on the RCCC case. [4]

NBA is celebrating its golden Jubilee holding its 10th National Conference with the slogan of the conference 'Human Rights, Rule of Law and Inclusive Democracy: Conflict Resolution'. The new definition of human rights includes issues related to women, to professional rights and to the self-respect and dignity. Supreme Court Senior Justice Anup Raj Sharma said that the current state of conflict should be addressed at the political level by denouncing violence and insurgency. Addressing the inaugural session of the10th National Conference held by Nepal Bar Association (NBA), Senior Justice Sharma stressed the importance of the NBA's role in solving the current problem and in maintaining the rule of law in the country. Senior Justice Sharma said the Supreme Court is committed to protecting human rights. NBA President Shambhu Thapa urged the Maoists to stop their activities of violence and mayhem. Condemning the acts of blasting, shooting, and abducting, President Thapa said that such types of activities would destroy the entire human civilization. Senior Advocate Sarbagya Ratna Tuladhar said, "We should not blame the Constitution when the reality is that we failed to run the nation by implementing its provisions in letter and spirit. The proper implementation of the constitutional provisions largely hinges on individuals holding key positions and hence they need to be honest." He said that the Constituent Assembly might not solve the current state of conflict, but there might be the possibility of amendment to the current constitution for solving problems. "We should be responsible to avoid the state of uncertainty, as democracy would be weakened when uncertainty gets protracted," said he [5]

Speaking at the golden jubilee of Nepal Bar Association and the Tenth National Conference of All Nepal Legal Professionals, concerned law practitioners said that the method of settling conflicts through the means of reconciliation and mutual understanding has been effective to enhancing social good-will and resolving the problems related to different court cases. Participants discussed on various topics including constitutional laws, the legislative and legal provisions, and access of people to justice, legal assistance, women/indigenous and backward communities, and peaceful settlement of the conflict. The legal professionals also presented working papers on the experiences gained from the 'Reconciliation Program run in 16 different districts of the country from 2002 to 2004 with the assistance of United Nations Development Program (UNDP). Some 1,010 persons including legal practitioners and employees of different courts and quasi-judicial bodies were provided training on reconciliatory settlement of legal cases during the implementation of this program. A total of 7,112 cases and debates were discussed during the program period, out of which 4,126 were settled through the mutual consensus and understanding. The participants of the conference said that this method of settling the domestic disputes through mutual understanding has been useful in dispensing justice in a quicker, cheaper and more convenient manner, in addition to reducing the pressure of cases in the courts and quasi-judicial bodies. [6]

On Saturday, March 4, 2006, the four-day 10th national conference of lawyers concluded urging the king to dissolve his government, announce an immediate ceasefire and accept constituent assembly elections as a way out of the current stalemate, and adopting various resolutions included in the seven-point Golden Jubilee Declaration of 2006 (2062). Stating that the recent Supreme Court verdict on the controversial Royal Commission on Corruption Control (RCCC) made it clear that the power and sovereignty of the state is vested in the people, the Declaration demanded the immediate dissolution of the Council of Ministers, as the Council of Ministers chaired by the king became unconstitutional. The Declaration also said that a people-mandated constituent assembly was the need of the hour for ending autocracy and for a peaceful resolution to the current crisis in the country. It also suggested either the restoration of the dissolved House of Representatives or formation of an all-party government as moving forward from the current political stalemate. With a big applause, the lawyers endorsed the resolutions as read out by General Secretary of Nepal Bar Association (NBA), Madhav Banskota at the main hall of Birendra International Convention Center in the Saturday evening, March 4, 2006. NBA President, Mr. Shambhu Thapa said, "At the 9th conference, NBA had stopped its representatives from demanding a constituent assembly, but this time the same NBA has passed your demand because of the new developments in the country. If the current regime continues to chart its own course, NBA will demand a democratic republic at its next conference." The conference passed an objection to the recent appointment of individuals who "do not stand" for the principles of constitutional supremacy, human rights, rule of law and independence of the judiciary, to the positions of justices at the Supreme Court of Nepal. The Declaration adopted by the conference demanded for an honest implementation of the 12-point understanding reached between the seven-party alliance and the Maoists, an end to violent activities and creation of an environment conducive to the restoration of peace. The conference condemned the government actions such as the ban on peaceful assembly, house arrests, travel restrictions on politicians, extra-judicial killings, illegal detentions and disappearances. The conference demanded an end to the acting of the army and the security forces with impunity. The conference also demanded the end of rule through ordinances that amend laws made by the people's representatives, curtail the people's fundamental rights, and go against the spirit of the Constitution. The conference demanded that the government revoke the draconian press ordinance and not promulgate the proposed broadcasting authority ordinance, and urged the Royal Nepalese Army to avert its plan to run FM stations, using frequencies meant for use by the general public. The conference concluded that women, dalits, indigenous people, the madhishe community and backward people should be accommodated in an inclusive and participatory democracy through the restructuring of the state. Urging the state and the Maoists to immediately declare a ceasefire, the conference also demanded that those who imposed a ban on political activities and kept people in extra-judicial detention, be brought to justice by presenting them to the international court. Saying the recently conducted municipal elections unconstitutional, the conference also approved that it would not legitimize the outcome. The conference strongly demanded that the government immediately release all detained political and civil society leaders including Madhav Kumar Nepal, Ram Chandra Poudel, Narahari Acharya, Gopal Man Shrestha, Pradip Giri, Bimalendra Nidhi, Prem Suwal, Dr. Devendra Raj Panday, Krishna Pahadi, Shyam Shrestha and Dr Mathura Prasad Shrestha. [7].

Around 2,000 lawyers held a rally walking from Maitighar to Naya Baneshwor in Kathmandu on the Saturday morning, March 4, 205 before holding a concluding conference at BICC hall. The Golden Jubilee Conference of the Nepal Bar Association is to publish its manifesto. The NBA decided to decorate Kantipur journo, Mr. Bal Krishna Basnet with this year's Legal Journalism Award for his extensive news coverage of legal and constitutional issues. The award carries a purse of Rs 10,000 and a certificate.

Speaking at the 'Face-to-Face' talk program held by the Reporters' Club on March 5, 2006, one of the drafters of the constitution of 1990 and former Justice of the Supreme Court of Nepal, Laxman Prasad Aryal reacting to the Nepal Bar Association's decision on supporting constituent assembly polls said, "the Constitution of Nepal of 1990 does not bar the people from going to an election to a constituent assembly if the sovereign people want to draft a new constitution. Since the King promulgated the Constitution of Nepal of 1990 giving sovereign power to the people, this does not bar them from going to the constituent assembly. There is nothing left for the king since he has already given power to the people." Former Minister for Justice, Nilambar Acharya said, "The current Constitution does not have any provision for an active monarchy. The King should be ready to go to a constituent assembly." However, advocate Balkrishna Neupane said he would not support the NBA's decision on going to for a constituent assembly polls. He said that putting forward the agenda of a constituent assembly was against the spirit and norms of the Constitution. He further said that the NBA has been carrying the agenda of the political parties that went against the ethics of professional lawyers. [8]

NBA and FNJ (Federation of Nepalese Journalists) have been the two professional organizations that have stood as the institutional foundation of democracy. These are the two professional organizations that the king could neither shake them nor took them to his side. He has no leverage on them. However, he has been attempting to influence the Supreme Court of Nepal delaying the implementation of the recommendation made by the Judicial Council for appointing 31 judges to the vacant positions at the Supreme Court of Nepal to dispose off the ever-piling-up cases. Nepalis believe that the willful delay was the tactic applied by the king to influence the Apex Court. The palace had tried to influence the Judicial Council to recommend names of lawyers loyal to the palace through the Minister for Justice, Niranjan Thapa, who as one of the Ex-officio Members of the Judicial Council put forward the names of 15 lawyers royal to the king for recommendations. However, other two Supreme Court Judges and Ex-officio Members of the Judicial Council vehemently opposed it. Thus, the visible and invisible constitutional fights for and against democracy have been going on in Nepal.

Footnotes

[1] eKantipur.com posted on: 2006-03-01 19:08:21 (Server Time)

[2] Nepaleyes.com March 1, 2006

[3] NewsLineNepal.com 2006-03-01 15:04:49

[4] The Himalayan Times Online March 2, 2006

[5] The Rising Nepal, March 2, 2006

[6] The Rising Nepal, March 3, 2006

[7] eKantipur.com posted on: 2006-03-04 09:39:37 (Server Time) and posted on: 2006-03-04 19:27:43 (Server Time).

[8] nepalnews.com pb Mar 06 06, The Rising Nepal March 6, 2006.

Siddhi B. Ranjitkar is a political analyst based in Kathmandu.

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