There was an extraordinary incident in political and judicial history of Nepal on Wednesday. Chief Justice (CJ) Gopal Parajuli was relieved of duty on the issue of age dispute by secretary of the Judicial Council that Parajuli himself chairs as the CJ. Even as the secretary wrote a letter informing that Parajuli is no longer CJ, Parajuli administered oath of office and secrecy to newly elected President Bidhya Devi Bhandari in capacity of CJ even after the letter was made public by the media.
These incidents show how weak our democracy and institutions are, and once again depict the utter disregard of our politicians, justices and government employees of the rules-based system. This has also showed how they take frivolous decisions without considering the rules, processes, laws and shame when they have an upper hand.
CJ Parajuli himself is mainly to blame for this issue reaching this farcical state. His educational certificates and date of birth are controversial. There is a strong chance that he may even have forged his educational certificate. He remained in the office until now by getting a date of birth that benefits him recognized by the Judicial Council under his chairmanship.
Despite all this, the way in which the decision to relieve him of duty has been taken, and the person involved in making the decision, is not just wrong but even ludicrous.
Let us first look at the decisions taken earlier by the Judicial Council about his date of birth. The first decision was taken by the then CJ Ram Kumar Shah. Sushila Karki then took another decision when she was CJ once a new law was brought. She recognized another date of birth as chairman of the Judicial Council and instructed the secretary to keep record of his date for retirement as August 5, 2017 accordingly.
What we must not forget here is that it was not the Judicial Council secretary who had taken the decisions about the date for retirement on both the occasions. The decisions were taken by CJs Shah and Karki in capacity of Judicial Council chairman.
Parajuli succeeded Karki as CJ. He ordered correction of his date of birth through a meeting of Judicial Council—that includes CJ, senior-most Supreme Court (SC) justice, law minister and two senior advocates–after he became CJ. The meeting corrected the date for his retirement to April 29, 2018.
The decision was wrong on both moral and legal grounds.
The dispute about his date of birth escalated after the decision. Setopati and other media published investigative materials about his date of birth and educational certificates, and brought additional facts to the fore.
Setopati was the first to publish the date of birth in the character certificate of Parajuli of the SLC examinations of 2029 BS that was with the Office of the Controller of Examinations at SanoThimi on February 9.
Judicial Council secretary has taken the decision on Wednesday invoking the date of birth of that character certificate and the Judicial Council Act. Secretary Nripa Dhwaj Niraula, in other words, has himself revoked the date of birth recognized by the Judicial Council, and recognized another date of birth.
How can a staffer of the Judicial Council revoke the decision taken by a meeting attended by the chairman of Judicial Council and other members? Such ludicrous incidents would not happen anywhere else in the world.
The secretary can only inform the Judicial Council if new facts and evidences are found in the dispute of date of birth of CJ. Our law does not allow the Judicial Council secretary to take decision on an issue that has already been addressed by the Judicial Council, and is currently sub judice.
The Judicial Council Act has clearly specified the works, duty and rights of the secretary. Clause 36(2) of the Act says the secretary should:
a. Implement the decisions taken by the Judicial Council
b. Get the records kept at the Judicial Council attested, and keep them updated, well-managed and safe.
The Judicial Council Act has not given any kind of rights to the secretary to take decision on any dispute related to the justices. If the secretary were given the rights, the secretary would take decision in all the previous disputes about the age of justices. But that has never happened until now. Such disputes have been decided only by the Judicial Council or the court.
Questions have been raised as to why and how secretary Niraula took the decision. It is childish and immature if he took the decision on his own. But it is very difficult to believe that he alone took such a big decision. There are doubts that those in the government have used a government employee as a tool to address the complicated age dispute about CJ and the division it has created in the SC. This is an ugly move by the politicians if that is so.
The only body to investigate and punish Parajuli is parliament. We want the parliament to investigate educational certificates of Parajuli, find how there are four different dates of birth of Parajuli in government documents, and impeach him if he has forged the documents. Only that will establish the public faith on rule of law. It will establish a good precedent that anybody who violates the law will be punished even if the person is a sitting CJ. That will make our democracy stronger.
The devious way of removing the CJ by using an employee, as has been adopted now, will only establish ‘deviocracy.’ Anybody can bring another person down using underhand methods in such deviocracy. That will not boost public faith on democracy.
We, therefore, want our lawmakers to not shirk their responsibilities. They should choose to relieve Parajuli through a transparent and credible process.