Commentary
Hearing of contempt of court case filed against Kantipur daily for publishing news reports about the controversy of date of birth of Chief Justice (CJ) Gopal Parajuli by CJ himself has invited another controversy.
The contempt of court case was filed after Kantipur published news reports about four dates of birth of CJ Parajuli in government documents, three dates of birth in his citizenship certificate and its copy.
CJ Parajuli assigned the case to his own bench and ordered publishers and journalists to be present before the court within three days.
The Civil Code prohibits a justice from hearing any case related to his/her close relatives, friends, teachers or any other case with conflict of interest. The code of conduct about justice also prohibits that.
But this is a case about contempt of court. And our judicial tradition allows any justice to hear contempt of court case.
Advocate Bhimarjun Acharya says countries that follow Common Law System including Britain and India allow a justice to hear a contempt of court case related to him/her.
"Our legal system and judiciary are also in accordance to the Common Law System. The justice associated with the contempt of court case can hear it," Acharya stated. "But the justice may recuse her/himself on the basis of moral grounds."
Separate law for contempt of court has not been passed in Nepal. The bill is currently under consideration in the parliament. There is, therefore, lack of clarity about contempt of court case and the hearing process for that. The court or justice, therefore, prepares working procedure once a contempt of case is filed.
What constitutes contempt of court is not clear in today's world that follows freedom of expression and accountable democracy. Opinions are divided on that and debate continues.
The traditional line of thinking says allowing criticism of justices hits the public faith on judiciary, and hence deems that to be contempt of court.
But progressive line of thinking is becoming stronger in recent times. This line of thinking says only efforts to obstruct or obstruction in implementation of court verdict constitute contempt of court, and comments on other issues do not constitute contempt of court.
This line that says speaking/writing about individual conduct, character, discipline and qualification of a justice does not constitute contempt of court is becoming even stronger.
The answer to the questions of whether Kantipur should or should not have written about the age controversy of CJ, or CJ should or should not have heard the contempt of court case against Kantipur should be sought from these beliefs.
Parajuli's age, his educational qualification and his citizenship certificate and its copy are currently under investigation by the Supreme Court (SC) itself. Parajuli, therefore, is a party to a case sub judice at the SC.
We asked a few former SC justices, who are closely observing this case, if CJ Parajuli should have heard this case.
They all concur that Parajuli can hear this case if he were merely a CJ.
But he is a party of the case. Kantipur and Setopati have published news reports about his four dates of birth, forged SLC certificate, three separate ages in citizenship certificate and other issues.
CJ assigned the contempt of court case filed by an advocate against Kantipur to his own bench and ordered publishers, editor-in-chief and reporter to be present before the court within three days for recording statement.
He has not stopped there and also issued an interim order to Nepal Press Council instructing it to investigate whether the newspaper has violated code of conduct, and take action.
There are two problems in this order.
The first is it tries to influence the investigation about his educational qualification and citizenship certificate by the SC itself.
The second is he has ordered for action against the newspaper that wrote against him.
Dissemination of information is a constitutional right. Parajuli's order has come with an intention of infringing on that right and tying the hands that write news reports against him.
A former justice said that hearing a case one is party to, and issuing an order on that is 'judicial deviation.'
