Hearing on government Nepal Army row over retirement of eight army generals -- 'No lawlessness in the name of transitional justice'

L&G, KATHMANDU, APRIL 21

Having heard the pleas of a jumbo team comprising 18 advocates defending the Ministry of Defense (MoD) in the past two hearings, the Supreme Court on Tuesday listened to the other side of the government-Army row over retirement of eight army generals.

On Tuesday's hearing four advocates -- Bal Krishna Neupane, Badri Bahadur Karki, Bhimarjun Acharya and Narendra Pathak -- pleaded trying to refute the arguments put forth by their opponents to vacate the March 24 interim order that stayed MoD's decision on the army generals' retirement.

The hearing that began on April 8 under the division bench of justices Anup Raj Sharma and Prem Sharma continued on Tuesday.

Besides some counter-arguments, the advocates of the Army generals made their points mainly to prop up the validity of the three bases -- active status of the Army Regulations 1963, past court verdict on Major General Pradip Pratap Jung Malla, and paucity of valid reasons behind the decision on retirement -- upon which the apex court's interim order was based.

Senior Advocate Karki pointed out that entire argument from the government side had been based on an illusion that the Army Act 2063 abrogated the Army Regulations 1963. He argued that the Regulations would be active until the government formulated a new one. To back up the argument, he cited Article 144 of the Army Act 2063, which stated that the term of the army staff would be as provisioned in the prevalent law.

Advocate Vimarjun Acharya urged that instead of the 'doctrine of pleasure' -- one of the key bases mentioned by the government lawyers to support legitimacy of MoD's decision -- 'doctrine of legitimate expectation' was applicable in the Army generals' request for term extension. He also argued that the court could interfere if the "discretionary power" was not exercised "reasonably".

Tuesday's hearing also furnished replies to another major argument the government side had been making -- since the Army Act stated that MoD "[might] extend" the terms of any army staff, it had the power "not to" do so.

The word "may extend" in the Army Act and Regulations seemed to prove the "discretionary power" but that did not mean that it could sack any staff on its will without furnishing valid reasons, argued Acharya.

He argued that unlike what the government side had been saying, the court could not permit "lawlessness" in the name of "transitional justice."

The advocates also blamed the government for trying to misguide the court by abusing the phrases such as Lokatantra and "people's aspirations". Government's lawyers had argued that the court should vacate the interim order considering the ongoing process of Lokatantrikaran (democratization).