[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The author in this post formed part of a panel on “Towering Judges in New/Mixed Constitutions.” The introduction to the joint symposium can be found here. Parts of this blog post are extracted from the paper presented by the authors at the conference and to be published with the other papers from it.]
—Dr. Mara Malagodi, Senior Lecturer, City, University of London
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. As a judge, I wanted to be in the foundations, not in the tower.
Kalyan Shesthra, Nepal’s former Chief Justice.
Dramatic political circumstances may give
rise to a particular type of towering judicial figures. An explosive context has
the potential to trigger a sort of “fight or flight” judicial response; thus,
those judges who demonstrate the resilience, confidence, and moral integrity to
stand their ground amidst cataclysmic events and political storms represent a
subset of heroic judges. They make the conscious choice to fight and resist
with a view of upholding the constitutional role of their institutions,
preserving their professional integrity, and protecting their identity as
dispensers of justice. In doing so, towering judges in dramatic contexts charter
a course for other judges to follow, which marks what could be described as a
“judicial True North”. The modalities of judicial resistance in the midst of
political upheaval vary enormously depending on the personality of individual
judges and the constitutional culture in which they operate. What appears to be
the True North of towering judges in the midst of the political maelstrom,
however, is a commitment to upholding the values of constitutionalism.
One of such towering judges is Nepal’s former Chief Justice, Kalyan Shrestha (b. 1951). His eleven-year Supreme Court tenure (2005-2016) corresponded to one of the most turbulent periods of Nepali history. He was elevated to the Supreme Court at the twilight of Nepal’s ten-year-long civil war (1996-2006) and his tenure overlapped with the country’s post-conflict transition to democracy and constitution-building process (2008-2015). His tenure encompassed a bout of emergency rule and royal autocracy; the election of two Constituent Assemblies in 2008 and 2013; the formation of an interim government headed by the then Supreme Court’s Chief Justice Khil Raj Regmi; the beleaguered attempts to secure a transitional justice process; two devastating earthquakes; and the promulgation of Nepal’s embattled current constitution in September 2015.
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