Thursday, 9 December, 2021

Shrestha Among 19 Towering Judges


Madan Kumar Bhattarai

Two professors with proven expertise in comparative constitutional law, Rehan Abeyratne (Hong Kong) and Iddo Porat Israel), have edited an innovative work entitled Towering Judges: A Comparative Study of Constitutional Judges.
The book is an exercise made to present a holistic picture of the global judiciary in general with particular emphasis on legal luminaries who have carved out a special niche in the evolution and consolidation of the jurisprudence of constitutional law. They have achieved this feat through espousal of in-depth articulation and interpretation of the constitution and even as one writer prefers to call it, triggering a revolution in the field of judiciary either as a legacy or a new experiment.

Apart from a long introduction by editors, the book covers 19 judges of the apex and constitutional courts from 14 jurisdictions making a visible impact on the trajectory of constitutional law.
There are altogether 16 chapters with 19 contributors including editors. The book encompasses judges who have distinguished themselves as jurists, writers and social champions covering an extensive area.
The first chapter defines towering judge and global constitution with an emphasis on the harmonious connection between towering judges and the global constitution, a concept that started after the Second World War reaching its zenith in the aftermath of the fall of Communism in Europe in the early nineties. It also speaks of the evolution of the global community of judges in contrast to more opaque relations that existed among them earlier.

Chapter two, though written from a fundamentally American perspective of towering judges, succinctly defines towering personality more as a colleague-dependent phenomenon. Countries and areas chosen in shortlisting towering judges include a judicious mix of established legal models for more recently evolving phenomena, as duly represented by Nepal, India, Hong Kong Special Administrative Region of China, Singapore, Vietnam, Australia, Israel, South Africa, the UK, Germany, Ireland, Hungary, the US, Colombia and Chile.
Important judges are chosen in the book range from high profile and media-savvy to others, preferring more discreet roles in a mix of different settings. One important aspect of an admirably quite comprehensive treatise is that it deals with only two examples from South Asia, Nepal and India.

Chapter eight is a matter of pride for us as it deals with "Nepal's Most Towering Judge: The Honourable Kalyan Shrestha" (pages 155-173) as it exclusively deals with innovative leadership that he rendered in terms of constitutional interpretation, evolution, consolidation and implementation of nascent judicial system confronting strains in the context of political transition with frequent changes, both regimes and governments.
From the prism of personal acquaintance since student days, our top legal brain belongs to the category that seeks to propagate names through sheer actions and accomplishments rather than seeking the limelight. It is in this context that he differs from the very concept of the towering judge. Justice Shrestha's humble comments are worth quoting, "A judge should not be 'towering' - that reminds me of the ivory tower. A judge should meet the expectations of the commoners. The tower is a way of separating the judge from living realities".

The writer critically examines the role played by Shrestha starting from biographical profile and landmark judgments during his eleven-year judicial career in Supreme Court as bold, trend-setting and imbued with integrity and missionary purpose for upholding the freedom of judiciary in the context of Nepal's most critical juncture and topsy-turvy political transition. Shrestha has been called an institution-builder for his pre-eminent legal role.
The chapter squarely blames the Constitution of Nepal 2015 for 'weakening' the Supreme Court in three major aspects. These include the creation of constitution bench with sole mandatory jurisdiction of reviewing the constitutionality of laws, easing of impeachment procedures for judges as demonstrated by two (though failed) impeachments of Supreme Court Justice Ananda Mohan Bhattarai in 2016 and Chief Justice Sushila Karki in 2017 respectively, and provision of Parliamentary Hearing Committee for confirmation of apex judges in addition to heavily executive-dominated Constitutional Council and Judicial Council to recommend such appointments. One example of a screening committee 'encroaching' on judicial appointments is that of acting Chief Justice Deepak Raj Joshi being eased out from the position after rejection in 2018. The writer also laments that Nepal's apex court has been subject to ceaseless attacks by elected representatives, media and civil society, also proved by the latest incidents following the recent Supreme Court verdict of July 12, 2021.

The author of this chapter, Professor Mara Malagodi, can be called a real expert on Nepal on a host of issues, politics, constitution, gender, minorities, human rights and legal history with her practical survey in different perimeters. Malagodi's expertise is a learning experience for many. Associated now with the Faculty of Law, Chinese University of Hong Kong, she is a comparative constitutional lawyer and socio-legal scholar with linguistically informed expertise in South Asia geared mainly to the field of law and politics with a focus on Nepal, India and Pakistan. Her Bachelor's degree from the School of Oriental and African Studies was in Nepali and Politics. She has contributed books, monographs, chapters, articles and country reports on wide-ranging issues in Nepal.

Chapter ten relates to "P.N. Bhagwati and the Transformation of India's Judiciary," calling Bhagwati the most influential jurist in post-independence India. In Bhagwati's definition, the constitution of any country was bound to be different from other ordinary statutes as the constitution was both a fundamental law and an organic instrument embodying the hopes and aspirations of people.

(Bhattarai is a former Foreign Secretary and author involved in studying Nepal's foreign relations from a historical perspective. He is available at