Conflict of interest in constitutional bench: How will Chief Justice resolve it?

Narayan Manandhar

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As in the last hearing on dissolution of parliament, a controversy has sparked inside the Constitutional Bench, from the very start, over the issue of conflict of interest with the presiding judges. The controversy has been sparked because there are no rules governing the appointment of judges to the Constitutional Bench. So far, the veto rests with the CJ.   

Last time, it was amicably resolved as the presiding judge, charged of conflict of interest, volunteered to recuse, paving a way for a non-controversial judge. The issue surfaced when one of the presiding judges was found to have held the position of Attorney General prior to his appointment into the Supreme Court. Moreover, he was also a partner in a law firm owned by the then Attorney General. By constitutional arrangement, the Attorney General is the legal advisor to the government. Clearly, there is a situation of apparent conflict of interest.

Complicated case

This time, the conflict of interest got far more complicated and the debate was heated with high decibel noises. As the opposition lawyers pleading against PM’s decision to dissolve parliament pointed out that of five, two judges were related to the court verdict bifurcating Nepal Communist Party (NCP) on March 7, 2021. They argued that as the on-going case (of parliament dissolution) is a by-product of this party bifurcation verdict, there is an apparent case of conflict of interest.

Though the concerned judges argued that the two cases are in no way related; the matter got complicated when two other judges decided to recuse pleading for the sanctity of the court. In their written statements, they quoted Bangalore Principles for the judges: “propriety and appearance of propriety are essential to the performance of all of the activities of a judge; a judge shall avoid impropriety in all of the judge’s activities”.  They also argued that “it is not just for the judges to give verdicts, the justice must be seen to be done; in order to have a visible justice, it is not just necessary that outcome of the justice to be clear and impartial, even the process leading to that outcome must be equally transparent and impartial.” They claimed “public trust and confidence rest on these foundational stones” and “justice cannot be trustworthy when the judges are not trusted by the public.” Public decisions should not just be good, they also need to be looked good and seen good by the public. When one deals with conflict of interest issues, it can be real or apparent/perceived.

In the Constitutional Bench consisting of five judges, CJ is definitely in a dilemma. The two judges, who are charged for conflict of interest, are not opting out while other two, who have nothing to do with conflict of interest charges, are requesting for an exit on the ground of perceived conflict of interest. The debate got heated when the advocates representing the government charged that “we cannot simply “pick and choose” the judges. The Attorney General warned of possible disciplinary actions against those who brought conflict of interest charges. He also generalized the issue by stating that if conflict of interest is to be implemented in letter and spirit, there will be nobody in the judgement panel. In fact, a case has been filed seeking disqualification of eleven judges in the Supreme Court on the ground of various conflict of interest issues.

The irony is the two judges, who are charged for conflict of interest, are not opting out while other two, who have nothing to do with conflict of interest charges, are requesting for an exit on the ground of perceived conflict of interest.

With his usual diatribe against the opposition, our all-rounder PM Oli sprinkled fuel on fire when he commented that it is time for the judges to read the verdicts prepared by the lawyers.

In a hurried meeting organized with the Supreme Court Bar Association, CJ made a hindsight commitment to introduce seniority criteria while forming the Constitutional Bench. This sounds like, having played the game a couple of rounds, we are framing new rules of the game. This is not going to solve the problem. The CJ still has to deal with two non-volunteering and two other volunteering judges. Should he opt out or opt in those four judges if they come under seniority criteria? What will he do with judges who were members in the last Bench? Will there be repetition or no repetition? At the end, the CJ may be left with considerably narrow choices to make—this may lead to another conflict of interest or interesting conflict on its own.  

Constitutional crisis

At a time when the opposition is preparing to wage battle on both fronts—legal as well as political—against the PM’s decision to dissolve parliament and call for early polls in November, we are having another constitutional crisis—of not being able to give a shape to the Constitutional Bench. Even when the Bench is being formed, there is looming doubt that it will come up with a verdict that is acceptable to all. The situation has been created because when it comes to conflict of interest we tend to hold a relaxed attitude. Anybody remember a commissioner holding a job at the CIAA while she is on leave from university job? How about a pensioner drawing salaries from political appointed posh jobs? Anecdotally, somebody joked that the prefix “Nep ” in Nepal is derived from the word nepotism. Nepotism, cronyism and favoritism are some other variants of conflict of interest situations where overriding private interest, not necessarily that of public officials, but of someone else—family members, relatives, friends, patrons or clients take precedence in public decision making. Somebody revealed to me the chain of reactions—Lalita Niwas related to court verdict, the court verdict related to appointment in constitutional bodies etc—moving in a sequential give and take fashion. When we are at the height of “setting theory” in operation, it will be interesting to watch how we grapple with conflict of interest, in the days to come, not just in judiciary but throughout the state apparatus—percolating from the top to the bottom. Or we continue to hold the Nepalma estai ho attitude.