Judiciary should have positive approach towards lawyers: AG Shrestha
Born in Baglung district, advocate Raman Kumar Shrestha is now the Attorney General of the nation. Besides being a law practitioner, his identity is associated with left politics. He was president of the All Nepal National Free Students Union (Sixth) during his student politics. Former secretary-general of the Nepal Bar Association, Shrestha was involved in the left movement inspired and influenced by communist leader Chitra Bahadur K.C. A gold medalist in constitutional law, Shrestha said that every professional leadership should show professional integrity. Talking to Liladhar Upadhyaya of The Rising Nepal, Shrestha underscored reform in the judiciary and change in the negative approach towards the lawyers. Excerpts:
The nation has promulgated the new constitution, and several obstacles have appeared in the course of its implementation. As the Attorney General, what are your observations regarding the statute implementation process and progress made so far?
The Constitution of Nepal was promulgated during a difficult period, despite reservations by some political parties, but the present situation shows that there is sufficient ground for implementing the new constitution. This constitution is progressive, socialism-oriented and guarantees several fundamental rights, which are the positive aspects of the constitution. Implementation of the constitution started with the election of the president, vice-president, prime minister, and now the nation is moving towards holding the local level polls, which will be a significant achievement for the nation in the course of implementing the new constitution. Power devolution to the local levels has created an environment conducive for holding the local level elections. The situation has automatically become favourable for the local level election as there is no alternative to holding the election within the stipulated timeframe. The Office of the Attorney General has played a positive role in drafting the election-related laws and holding elections in a free and fair manner.
What is your reading about the role of the judiciary at the present moment?
Our judiciary is well-equipped with all kinds of rights and powers as per the principle of the separation of power. There is no alternative to an independent judiciary. However, some questions are being raised in the course of delivering justice in both the letter and spirit of the law, and the constitution. The justice system should not be judge-centred, rather it should be guided by the law and constitution. Such kinds of questions should not be raised as they go against the dignity and norms of an independent judiciary.
As the Attorney General, what are your major works?
Our law and constitution have envisaged powerful, efficient and competent government attorneys. Moreover, the public prosecutors should be well trained and equipped with resources and necessary training. We organised a national conference of government attorneys after 65 years of the establishment of the Office of the Attorney General. The conference issued a 30-point declaration, which helped the public prosecutors perform their duties effectively with commitment. We also organised a joint conference of public prosecutors, who are known as government attorneys, and crime investigators, who are known as the police, to exchange the experiences of both, and remove the difficulties that have surfaced between the two institutions. The conference came to the conclusion that there should be collaborative and transparent efforts between the prosecutors and investigators to handle criminal cases in which the government is the first party or prosecutor. We have introduced several policies and programmes to enhance the capacity of the government attorneys and encourage them. A system has been introduced where the government attorneys from the headquarters will be present during a case hearing and defend cases at the district level, which, of course, encourages the government attorneys at the local level.
You have been criticised for your role in the hearing of the Inspector General of the Nepal Police and appointment of 80 judges to the high courts. How do you clarify these allegations?
It is a fact that the government attorneys were ignored while appointing the 80 judges to the high courts. The system of evaluating seniority, eligibility and capacity was undermined while appointing the judges. As the chief of the government attorneys, I raised voices in favour of them and against injustice. Consequently, the Judicial Council has given assurance to us that such mistakes would be rectified in the future. So far as the IGP appointment case is concerned, my opinion was that those justices, who had issued the interim order, should not have sat on the bench that was going to pass the verdict by entering into the merit of the case. However, a full bench has issued the verdict, and it will be implemented soon.
Frequent tussle between the Bar and the Bench is reported. What suggestions do you have to make the relations between the two institutions smooth?
It is necessary to have good relations between the Bar and the Bench, but there is frequent conflict between them as the Bar is the only organisation to speak in favour of the judiciary. We have precedents where issues were resolved amicably in the past. There is a coordination committee to strengthen the relations between the two institutions, but it could not function well. It is unfortunate to see the situation of Bar versus Bench instead of being institutions that are complementary to each other. On the one hand, there is a defect on the approach of the leadership of the judiciary towards the Bar, and on the other, there is a lack of aggressive and professional leadership from the side of the Bar, meaning the Bar leadership eyes the post of the justice while taking the role of the in-charge of the Bar. The entire institution of the judiciary sees the lawyers as problem creators. Things are developed to such an extent as if the judiciary is thinking of running the institution without lawyers. This situation should change and be improved upon while taking about the relations between the Bar and the Bench. The judiciary should review its present approach to the Bar so that the problems could be resolved between the two institutions amicably.
Do you have any suggestions to change the role of the Nepal Bar Association?
The leadership of the Nepal Bar Association should not expect the post of justices and other similar posts. They should be able to lead the organisation professionally. Like the previous leadership of the Bar, the present leadership is also expecting such posts, and that tendency is affecting the dignity and professionalism of the Bar, or private lawyers. If the Bar leadership shows interest, he/she cannot lead the organisation effectively. That's why I have already declared that I will not become a justice, if offered.
What are the prospects and challenges of federalism in Nepal?
We cannot backtrack from federalism, but all the forces and actors should present themselves in a flexible manner to implement it. Our federalism is not as pure as it is in other federal countries. It is quasi-federal state. The devolution of power for the local and provincial level is a great achievement for the people to end the unitary or centralised system that we are practising now. People now understand that it is necessary for them and for their development. With the effective implementation of it, there is a possibility to lead the nation towards prosperity. However, there are several challenges while implementing federalism. First, it is expensive to run a nation under federalism. Second, several conflicts, including on natural resources, may emerge with the implementation of federalism. The concerned parties should search for amicable solutions to the possible disputes. But there is no alternative to implementing federalism to realise the aspirations of the people expressed during the various movements.