Convoluted court judgments often leave even lawyers scratching their headsLegal experts and former justices stress the need to simplify the language in court orders, which are often so wordy and long-winded that even advocates struggle to decipher them, let alone the general public.
Tika R Pradhan
On Wednesday the Supreme Court issued an interim order in response to a writ against the nomination of Nepal Communist Party’s vice-chair Bamdev Gautam to the National Assembly.
A single bench of Justice Ananda Mohan Bhattarai, in the three-page order, concluded that the issue needed a serious constitutional explanation, that Gautam should not be given additional constitutional responsibilities and hence “it should be put on hold” until the next interim order. The bench ordered that both the parties—the petitioner and defendants—be informed about the next hearing on September 30.
One interpretation almost everyone made was that the bench blocked Gautam’s way to the Cabinet. However, since Gautam has already taken the oath as a member of the National Assembly, which the bench also noted in its judgment, there was confusion whether he can perform his duties as an Upper House member or not.
Setopati late on Wednesday night ran a report saying there were different interpretations of the interim order. While some say the order stops Gautam from becoming a minister, others say he cannot work even as the National Assembly member, the digital news portal reported.
Kantipur, the Post’s sister paper, on its Thursday edition carried an explanatory report on the court order. According to the report, the order meant Gautam could not become a minister at least until September 30 but it did not stop him from being appointed a member of any committee under the Assembly.
The Post, too, ran a report on the order, saying the Supreme Court blocked Gautam’s way to the Cabinet, for now.
According to the petitioner, the order, however, meant Gautam cannot work even as a member of the National Assembly. But defence lawyers said the court has only barred him from becoming a minister.
Legal experts and observers say most of the court orders are often full of legalese, at times making it difficult for even lawyers to decipher the judgments.
“I was totally confused when I read reports on different media on the court order with regard to Gautam’s nomination,” said P Kharel, a professor of journalism and mass communication at Tribhuvan University. “I could not figure out what exactly the status of the ruling party’s vice-chair is after the interim order.”
Court orders in Nepal have traditionally been found to be long-winded, sometimes one single sentence running an entire paragraph. Some judges tend to use sparkling prose, while others use a language that is obscure and verbose. Sentences punctuated by Articles and court rules, which the lawyers then decipher, are so complicated at times that the judgments make no sense to normal people.
“Forget ordinary people and journalists, some judgements are extremely difficult even for lawyers to understand,” said Chandra Kanta Gyawali, a senior advocate who is also a member of the Nepal Bar Council, an independent legal institution that promotes, protects and regulates the activities of law practitioners in a professional manner. “Sometimes, lawyers tend to make their own interpretations of the judgements.”
According to Kharel, the mass communication professor, for journalists working for English media, court orders are even more challenging, as judgments written in Nepali already are so complicated, and reporters have to be extra cautious so as to ensure accurate translation.
Lawyers and former justices admit that there is a need to bring some changes when it comes to writing judgments without being wordy.
“We have talented justices in the Supreme Court who are extremely well-versed on legal matters,” said Balaram KC, a former Supreme Court justice. “They can bring a new trend of writing short and succinct judgments. Brevity and clarity should be the key.”
Convoluted court orders, however, put ordinary people and even lawyers and judges in dilemma in other parts of the world too. Legalese is not everyone’s cup of tea, anyway, and experts say since law itself is a technical subject consisting of arcane theories, court orders are often quite difficult to fathom.
Officials at the Supreme Court admit the need to simplify the language in court orders.
“We have also felt the need for proper dissemination of judgments in a simplified form,” said Bhadrakali Pokhrel, spokesperson of the Supreme Court. “We are studying ways to address that concern.”
Court orders in a simple and plain language can also help authorities implement them in a more effective way.
An official at the Office of the Attorney General said there have been many instances when government authorities have approached the Office to help decipher court judgments.
“Sometimes, they ask us if we can help make it clear what exactly the order says,” the official, who did not wish to be named, told the Post. “We frequently receive calls from different government authorities that are asked by the court to implement the orders.”
Once judges are appointed in Nepal, they undergo a training programme, for about two months, on several aspects of their profession, and one of the topics is “judgement drafting”.
“During the training, we discuss ways to make judgements short and simple and to the point so that at least both the parties can understand them,” said former Supreme Court Justice Top Bahadur Magar, executive director of the National Judicial Academy, a government undertaking that provides training to judges, government attorneys, government legal officers, judicial officers, private law practitioners, and others who are directly involved in the administration of justice in Nepal.
“The basic ingredient of the judgement should be that its language must not be ambiguous and complex. However, we continue to see complicated court orders.”
Sanjiv Raj Regmi, spokesperson for the Office of Attorney General, said he, during his decades of career dealing with legal matters, has come across many judgements that are circumlocutory, meandering and unintelligible.
He recalled one judgment on transitional justice (Suman Adhikari Vs government, February 2015) as quite complicated to understand. “I have read the 85-page judgment multiple times, and I think I will find something new in it every time I read it,” Regmi told the Post. “I too have struggled to fully comprehend it.”
Jurists say that since Supreme Court judgments are also treated as law in the common legal system, such orders should be unambiguous and clear—for immediate implementation as well as for further references.
Shambhu Thapa, also a senior advocate, stressed the need for keeping the language in court judgments as simple as possible for everyone to make sense.
“Different judges have their own styles of writing judgments,” Thapa told the Post. “It’s in everyone’s larger interest if justices avoid using too many words and state their points clearly. The shorter the sentences, the easier it is to apprehend what the order means.”
Ram Krishna Timalsena, former registrar at the Supreme Court, shared his own observations on why judgments are sometimes complicated, wordy and incomprehensible.
“There is this perception in Nepal… if you write a difficult language, you are a better person… that you would earn more respect,” Timalsena, who holds a PhD on Constitutional Law, told the Post.
“It’s not that judgments cannot be written in a simple and plain language. Everyone has the freedom to put their linguistic dexterity on display, but how will the judgment serve the purpose if it is indecipherable.”