Joint Symposium on “Towering Judges”: A Foundational, not Towering, Judge

[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.[1]

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.

I argue that the factors that led to the rise of Kalyan Shrestha to the status of a towering judge reflect a combination of individual temperament, timing, and institutional and cultural conditions. Well-liked and highly respected, the Nepali media described him as ‘a bold judge with a clean image’, and ‘known for his integrity and professionalism’. When Justice Shrestha was elevated to the Supreme Court in 2005 at the height of the civil war the timing and the institutional and cultural preconditions were conducive for a towering judicial figure to emerge. Under the 1990 constitution Nepal had veered towards legal forms of rights protection. Domestically, the new constitution contained extensive fundamental rights, and mechanisms for judicial review of legislation and the enforcement of rights, alongside Indian-style Public Interest Litigation (PIL). Internationally, Nepal had also ratified an array of international human rights instruments, which became enforceable domestically. Moreover, since 1990 the Supreme Court had progressively become bolder and more assertive in its decisions and role. As a common law-derived jurisdiction primarily influenced by India, Nepal also featured the cultural prerequisites for bold judicial activism and individual towering judges to emerge.

The primary dimension of Kalyan Shrestha’s “towering-ness” is institutional (Porat and Abeyratne, 2019). He prioritized the strengthening of the Supreme Court’s legitimacy over abrupt change, and incrementalism over political expediency. He deployed a three-pronged strategy to achieve such goals. First, Kalyan Shrestha fought to defend judicial independence at all costs even in politically controversial cases such as the dissolution of the first Constituent Assembly and the forced retirement of the highest echelons of the Nepal Army. Second, his central concern for the poor and marginalized led him to prioritize the respect and promotion of constitutional rights and international law over political expediency. In fact, his most visible legacy is a monumental collection of judgements in matters of transitional justice, gender equality, environmental protection, right to privacy, reproductive rights, and many others. Third, Kalyan Shrestha worked to strengthen the institutional capacity of the Supreme Court both in terms of structures and personnel. He introduced three Five-Year Strategic Plans, secured a sizeable budget from the government, and set up the National Judicial Academy.

Kalyan Shrestha’s mode of operation was individual. In terms of his judicial style and relationship with the other judges, in the majority of cases he decided he was either sitting alone or in a Division Bench with another judge. Nepal’s Supreme Court is not particularly collegial and judges do not often discuss a case beyond the Bench to which it has been assigned. Moreover, there is not a major tradition of dissenting judgements. Usually the most senior judge on the Bench drafts the judgement, but since the beginning of his tenure, Kalyan Shrestha developed a habit of writing the judgements himself, and then the other judge(s) would simply concur and undersign his judgement.[2]

While Kalyan Shrestha’s tenure is too recent to offer conclusive evidence of his long-term legacy, a modest claim can be made with regard to the political backlash produced by a fearless, activist judge impervious to political pressures at the time of the drafting of the new 2015 constitution, which has significantly weakened the position of Nepal’s Supreme Court. Justice Shrestha fought fiercely to preserve judicial independence during the constitution-making process, ferociously countered the proposals for the creation of a separate Constitutional Court, and then unhappily resigned himself to the compromise that was the creation of a Constitutional Bench within the Supreme Court. He correctly identified the politicized attempts to rein in the Supreme Court as an instance of a wider, concerted assault on the Nepali judiciary.

Suggested Citation: Mara Malagodi, Joint Symposium on “Towering Judges”: A Foundational, not Towering, Judge, Int’l J. Const. L. Blog, Mar. 22, 2019, at: http://www.iconnectblog.com/2019/03/joint-symposium-on-“towering-judges”-afoundationaljudge

The author is grateful to former Chief Justice Kalyan Shrestha for his time, and candid engagement with this research endeavour.

[1] Kalyan Shrestha, Personal Communication, Kathmandu, 22 December 2018.

[2] Ibid.