Rayamajhee´s reason while refusing to hear the application was that there was already one precedent set by himself in a similar case which is also applicable to the hearing of the government plea to vacate the last Tuesday´s stay order relating to the retirement of the eight brigadier generals.
Justices Rayamajhee and Khil Raj Regmi were assigned to take up the government plea against the stay order passed by Justice Kalyan Shrestha last Tuesday. But the hearing did not take place after Justice Rayamajhee refrained himself by giving what lawyers and judges said is illogical reason never applied in court practice in the past.
While refraining himself from the hearing, Justice Rayamajhee said that he was involved in passing the verdict relating to the retirement of another Nepal Army general, Pradip Pratap Bam Malla, in 2006. The verdict was invoked by Justice Shrestha last Tuesday to stay the government decision retiring the brigadier generals by not extending their tenure.
"The reason that Rayamajhee gave to refrain from the hearing is illogical. It is just a pretext to escape the hearing on the controversial case in view of the ongoing Maoist protest against the stay order," said a prominent constitutional lawyer on condition of anonymity.
This is the first time a judge has refrained from hearing a case on the ground that the case under consideration was related to a similar case decided by the same judge, according to lawyers and judges at the apex court.
Judges generally refrain from taking up responsibility if the assigned cases happened to be of their relatives and have their personal interest. But it is uncommon for judges to refrain from taking up cases on the ground that the cases assigned for hearing have invoked a past precedent set by themselves, according to lawyers and judges.
Lawyers and the sitting apex court judges said that Rayamajhee might have done so because of the ongoing Maoist threat to judges in the aftermath of the apex court stay order last Tuesday on the retirement of the eight brigadier generals. The Maoists, including Finance Minister Dr Babu Ram Bhattarai, have publicly criticized the last week´s stay order on the retirement of the eight brigadier generals, whom the Maoists wanted to get rid of.
Talking to myrepublica.com, the lawyers and the judges further said that Rayamajhee avoided the hearing because, if he had taken up the case, he would have been under compulsion to follow a precedent set by himself in a the case relating to the retirement of Major General Bam Malla, which means making the Maoists angry at a time when he needs their favor to be the chief justice in May when the term of the incumbent expires.
Maoist Chairman Pushpa Kamal Dahal, in his capacity as the prime minister, is the head of the Constitutional Council that picks up the chief justice. Rayamajhee is the seniormost justice vying for the top judicial job.
"I thought it was not good to hear the application because the last week´s stay order had invoked the verdict (relating to Malla) passed by me in the past," Justice Rayamajhee told myrepublica.com.
However, Rayamajhee´s colleagues at the Supreme Court questioned his reason for not hearing the plea. "Can he avoid hearing if a case is related to the precedent set up by all the judges of the court? No, a judge cannot avoid hearing in the fashion similar to Rayamajhee," an apex court judge said seeking anonymity because a judge is not allowed to comment on the work of his colleague.
kiran@myrepublica.com
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