Court orders Oli to be present with written reply on contempt chargeThe bench has given the prime minister seven days to furnish clarification why he should not be punished for making disparaging remarks against the judiciary.
The Supreme Court has summoned Prime Minister KP Sharma Oli to appear before it, in person, within seven days with a written reply explaining why he should not be punished for contempt of court.
A single bench of Justice Manoj Kumar Sharma issued the summons to Oli on Thursday, responding to two cases of contempt of court filed against him for making disparaging remarks against legal practitioners and the judiciary.
“The Supreme Court has summoned the prime minister to furnish his reply in writing,” said Devendra Dhakal, assistant spokesperson for the Supreme Court. “As per the language of the order, the defendant should appear before the court in person.”
On January 26, two contempt of court cases were registered at the court—one by senior advocate Kumar Sharma Acharya and the other by advocate Kanchan Krishna Neupane—against Oli for using derogatory remarks against legal practitioners and trying to influence the court.
On January 22, Oli, while addressing his cadres in Kathmandu, was defending his House dissolution move. And in doing so, he said that lawyers were arguing ad nauseum on his House dissolution decision despite the fact that there are no constitutional provisions that allow for the restoration of the House.
After finding himself cornered in his Nepal Communist Party, Oli on December 20 took a drastic step of dissolving the House and declared snap polls for April 30 and May 10.
As many as 13 writ petitions against Oli’s House dissolution move are being heard by the Constitutional Bench led by Chief Justice Cholendra Shumsher Rana.
Oli, however, is saying in every other public function that his House dissolution decision was a political move and that it does not warrant a judicial review, which analysts say is objectionable, as the prime minister is speaking on a case sub judice in court.
On January 22, Oli not only took a jibe at Krishna Prasad Bhandari, 94, a senior advocate and former chair of Nepal Bar Association, saying that the petitioners were giving trouble to a “grandfather” lawyer, he even described the ongoing hearing on House dissolution as a “drama”, drawing contempt of court cases.
Legal practitioners have called the court order to summon Oli a “bold” decision.
“As per the court order, the prime minister himself should be present in the court. Whether he will come after resigning or with a motorcade is up to him but this is a serious moral question to the prime minister,” said Sunil Pokhrel, former secretary general of Nepal Bar Association. “The court has taken a very bold decision in this respect.”
Ever since he returned to power in Februar 2018, Oli has been displaying his authoritarian streaks, but on December 20, he went on to make such a move that the current constitution, according to experts, does not allow him.
Though Oli has cited Articles 85, 76 (1) and 76 (7) for dissolving the House, experts on constitutional matters say the said articles do not allow Oli, as a majority prime minister, to dissolve the House, as all of them are related to government formation.
But after dissolving the House of Representatives, Oli, whose totalitarian impulses were in full display, has been behaving as though he is the state, as he has not been giving two hoots even about the judiciary.
Raman Shrestha, a senior advocate and former attorney general, said by summoning Prime Minister Oli, the court has taken a bold step as concerns were growing over whether the judiciary was becoming a shadow of the executive.
In recent history, other prime ministers summoned by the court on contempt of court charges were Girija Prasad Koirala and Baburam Bhattarai who were asked to present themselves before the court.
Bhattarai was summoned in January 2013 for obstruction of justice—which amounts to contempt of court—over the murder of journalist Dekendra Thapa. Thapa was killed by then Maoist rebels in 2004.
In September 2004, Koirala was asked by the court to furnish clarification on a contempt of court charge for his remarks that the Supreme Court should be transferred to Narayanhiti Palace, which used to be the residence and workplace of the monarchs until Nepal abolished the monarchy in 2006.
“Earlier, prime ministers used to be weaker due to frequent changes of government and the court would issue summons to them easily,” said Shrestha. “But currently, when Oli is working like an all-powerful person and questions are being raised against the judiciary, the court’s move of summoning him, asking him to appear in person is definitely a bold move.”
The single bench of Justice Sharma on Thursday also summoned four former chief justices—Min Bahadur Rayamajhi, Anup Raj Sharma, Kalyan Shrestha and Sushila Karki—and former House Speaker Daman Nath Dhungana on contempt of court charges.
They also have been asked to be present in person with clarifications why they should not be punished for contempt of court.
The four former chief justices had issued a statement on January 8 saying that the House dissolution was unconstitutional, which according to petitioners—Lochan Bhattarai and Dhanjit Basnet, could influence the ongoing hearing on House dissolution and was tantamount to contempt of court.
Former chief justice Karki said that she was ready to follow the court orders.
“We will give our statements as we have done nothing to create pressure on the court proceedings,” Karki told the Post. “The petitioners have demanded maximum punishment and we are ready for that if the court decides so.”
Anup Raj Sharma, another former chief justice who has also been summoned to the court, however, said that he, along with other former chief justices, had spoken as Nepali citizens as all of them were concerned about the country.
“Why can’t I put forth my opinion? I have not said one should do this or that,” Sharma told the Post. “This constitution is owned by the people, and not only the justices, so everyone is free to speak up about their concerns.”
Sharma also said since the dissolution of the House of Representatives was directly related to the fate of the citizens, they have all the right to express their concerns.
“I'm a general citizen and this constitution is related to my fate,” said Sharma. “If the constitution is derailed there won’t be any elections.”
Dhungana, the other public figure to be summoned by the court, said that he felt motivated to fight for free speech.
Advocate Rajaram Ghimire had filed a contempt of court case against Dhungana for making a public statement that the justices of the Supreme Court could be targeted if they did not consider the people’s sentiment while delivering justice.
“The court’s decision [to summon me and four former chief justices] also shows where our Nepali society stands and where we are heading towards. We should not stop the free flow of ideas and views,” said Dhungana, reacting to Thursday’s court decision. “Restrictions on them block the healthy growth of our society. Our fight is for open society, a value system and independence of the judiciary.”
Clause 7 (a) of the Supreme Court Act, 1991 on Contempt of Supreme Court and subordinate courts states that Supreme Court may impose punishment of up to one year imprisonment or a fine up to Rs10,000 or both to the person convicted, in case wherein the Supreme Court has initiated the proceeding of its own contempt or contempt of subordinate courts or judicial authorities.
Clause 7(2) says notwithstanding anything contained in Sub-Section (1), if the accused or convict apologises to the satisfaction of the court, the Supreme Court may pardon or excuse, remit the punishment imposed or may suspend the punishment with conditions determined by the court, and if the conditions are fulfilled, the court may order not to execute the penalty.
Opinions are sharply divided lately, as various statements are being made over Oli’s House dissolution move. While some say people should refrain from commenting on a case under consideration of the court, others say since Oli’s move is an attack on the constitution, people must freely speak about the matter irrespective of the fact that the case is being dealt with by the court.
Observers say what matters the most is the rule of law and respect for the judicial process and that Thursday’s summons to Oli, former chief justices and a former House Speaker, who is also a prominent civil society member, is a clear message that everyone should have faith in the independence of the judiciary.
“It shows that nobody is above the law,” said Balaram KC, a former Supreme Court justice. “It’s purely the discretion of the court whether to summon the authorities in person or through their lawyers.”
KC said it is a coincidence that chiefs of all three organs of the state—one sitting and five former—have been summoned simultaneously.
“The court has treated them—the prime minister, former Speaker and former chief justices—equally,” KC said.
Anil Giri contributed reporting.