Judiciary and the impermanence of stability

Ex-revolutionaries begin to fear revolution.
Mere mention of the term,
Makes them shiver in trepidation.
– Pawan Karan in "Range Adak"
 
The Rolpali Revolutionaries – call them Roarists, in recognition of their persistent roar – under the charismatic leadership of the enigmatic Pushpa Kamal Dahal, are centimetres away from becoming The Establishment in Nepal. The political and economic agenda of the Maobaadi show that the Chinese have all along been correct in their assessment of the armed insurgents south of Tibet: for the Roarists, Maoism was merely a ticket to ride on the escalator of political power. Once ensconced in Singha Durbar, the seat of the legislature, Dahal and his fellow travellers will most likely be little different from their predecessors in what was once the largest and most centralised secretariat complex in all of Asia.

Although they have offered mixed messages over the shape of the political economy in the days to come, the Roarists are emphatic about what they want to do with the legal system: restructure the judiciary, probably in their own image. While there is little doubt that the judicial system of Nepal could do with some much-needed reforms, the fear that the Roarists might try to transform it into an institution that will legitimate the decisions of their kangaroo courts, which have functioned in the countryside, has sent shivers down the spines of constitutionalists. After all, despite all their weaknesses, the last line of peaceful defence against excesses of the executive and the legislature is still the law courts.

Elections are necessary but insufficient conditions by which to ensure equality and justice in society; likewise, popular mandate cannot be interpreted as license to enforce either populist or partisan agendas. Elected senators endorsed institutionalised discrimination against non-Romans in ancient times; 'democratic' whites fought for the continuation of black slavery in the United States during the early years of that country; the Apartheid regime in South Africa conducted regular elections; and polls are periodically held in both the Pakistan- and India-administered parts of Kashmir. There is certainly no guarantee that the Roarists of Nepal will not be tempted to carry out what they have been threatening for years: to capture state power through popular election.

There is a very long tradition of books being cited to counter brute force, though not always with desired effect. Sagacious Bidur tried to dissuade Kaurav rulers from disinheriting Pandavas, but the old sage of slave lineage was ignored by swaggering nobles of power-blind Dhritrastra's court. Wise Vibhishan counselled Ravana against prosecuting messenger Hanuman, but the most-learned of all kings of his time was too egotistical to listen to his restrained brother. In both mythologies, events took revenge against those who showed no patience for the voices of dissent. Perhaps that is the lesson of all classics: they teach the weak to have faith in the strength of their beliefs.

Convictions persistently pursued become the 'truth', once this truth holds its own against naked force, and ultimately triumphs over pretence. Those 'truths' are what Sir Edward Coke, the chief justice of the Court of Common Pleas in early 17th-century England, referred to as "common law", which he ruled was "supreme law, even when the Crown disagrees". Thus it was that the death blow against the divine right of kings was delivered by an interpreter of laws rather than a priest or an army commander. The Supreme Court of Nepal showed similar moral courage when it disqualified the Royal Commission on Control of Corruption that King Gyanendra formed, after the royal-military coup, to hit back at his political opponents. But even judges do not operate in a vacuum; it is the social milieu that gives them courage and strength to stand up, even when they know that they have little or no control over the ways in which their decisions will be implemented.

Southasian societies, however, look at the world of law with scepticism bordering on cynicism. By and large, lawyers are the butts of jokes, and courts are considered to be bastions of conservatism. Politicians take pot-shots at the judiciary with impunity. Part of the blame for such a state of affairs has to be shared by the justices. But the media also must mend its ways, for when push comes to shove, recourse to courts, howsoever flawed, is the only way of obtaining justice. If all of humanity has no right to silence a single dissenter, that endangered right can only be monitored, evaluated and protected by a competent, confident and comfortable judiciary that is free of populist pressures or authoritarian controls.

The military is often blamed for the fragility of democracy in Pakistan, and for good reason. But the Pakistani judiciary has been equally guilty of legitimating every usurper since Independence. When 'unconventional' Chief Justice Iftikhar Chaudhry stood his ground, Pervez Musharraf and his fellow generals were forced to shift their position. It might not be as easy for Nepali judges if Dahal and Company were to opt for confrontation. But, then, this is all the more reason for the media and civil society to work for unquestioned constitutional supremacy and inviolability of fundamental rights.

Idols of honour
Politicians have large constituencies, so the media records their passing away with adequate elaboration. Inheritors of industrialists buy fame by splashing full-page ads in a country's dailies. But just as old soldiers fade away rather than die, retired judges tiptoe out of public memory and disappear into silence. When Justice Jagmohan Lal Sinha (1920-2008) and Justice Hans Raj Khanna (1912-2008) passed away recently, their departures were barely noticed outside the legal fraternity in India. But these two judges showed the character needed to deserve the honorific 'Your Honour'.

In a landmark judgement by the Allahabad High Court on 12 June 1975, Justice Sinha declared Indira Gandhi's 1971 election to the Lok Sabha void, and disqualified her from being a member of either the Parliament or a state legislature for six years. This historic decision changed the Indian polity forever; Mrs Gandhi, after all, went on to clamp down a state of internal emergency and suspend fundamental freedoms. But Justice Sinha had delivered his judgement without moralising, and with great restraint.

Justice Khanna made his mark by dissenting from the majority opinion during the dreaded State of Emergency, and paid a heavy price for it – he was superseded when it was his turn to become the Chief Justice of the Supreme Court of India.  In the 1976 case Jabalpur v Shiv Kant Shukla, the government contended that, for the duration of the emergency, no citizen could seek enforcement of the right to life and personal liberty. Some of the country's senior-most judges validated the government's position, observing, in Justice M H Beg's words, "We understand that the care and concern bestowed by the state authorities upon the welfare of detainees who are well housed, well fed and well treated, is almost maternal."

But Khanna differed. He stated, without a hint of grandstanding: "The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive … What is at stake is the rule of law. The question is whether the law speaking through the authority of the court shall be absolutely silenced and rendered mute." The popular movement spearheaded by Jayaprakash Narayan ensured that the Indian Constitution could not be kept in abeyance for long. But the credit for having kept up the spirit of constitutionalism must also go to judges such as Sinha and Khanna, as well as the noted jurist V R Krishna Iyer.

Perhaps it is a bit premature to cast aspersions upon the intentions of Nepal's Roarists. But, as the old adage holds, eternal vigilance is the price of democracy. An independent judiciary is necessary for the health of any democracy, and for the stability of any society. Despite its flaws, neither the supremacy of the Parliament nor the invincibility of a president can compensate for the free functioning of a country's law courts.