The defence rests
Renowned legal practitioner Kusum Shrestha passed away on November 7 at the age of 83. He had been suffering from asthma for some years and died after developing complications. Kusum is the Nepali word for China rose. Like the flower, Shrestha was a valuable gift to the nation from Bandipur, Tanahu district, the township where he was born and spent his early childhood. Bandipur stands out for its serene nature, inspiring tradition and well preserved culture, and Shrestha demonstrated the same attributes in the areas of law and justice.
Bandipur’s gift to Nepal turned out to be a gem for the legal profession, outstandingly special in some respect. This specialness came from the modernity which became his symbol during his struggle as a practicing lawyer for almost five decades. From the time he started his career in the mid-1960s, Shrestha contributed greatly to the emerging law profession that then lacked organisation, culture and professional values. The concept of the bar had only just begun to take shape. Shrestha and his likeminded colleagues took the leadership and became a role model for new entrants to the bar.
Well-versed in Nepali and English, and theoretically sound and with a law degree from Calcutta University, Kusum Shrestha quickly established himself in the profession. By the early 1970s, he had become a successful lawyer. Apart from his professional qualities, he had an impressive personality. Judges took him seriously, as did other justice sector professionals. He held the courts in great honour and defended their power, jurisdiction and independence. As soon as he had established himself in the profession, he quickly moved to organise the foundations of the practice of law by establishing the Supreme Court Bar Association and becoming its founding president. This provided a firm footing for the Nepal Bar Association.
Shrestha also founded the Nepal Law Society that involved itself in the reform of laws and the construction of the legal system. This type of semi-academic professional body did not exist in the contemplation of Nepali society at that time, depicting how Shrestha’s goals were well beyond his time. During the 1990s, the Nepal Law Society played a major role in writing the constitution in Nepal. Shrestha was a key figure behind all legal publications released through the bar and the Nepal Law Society in the 1980s and 1990s. He was one of the very few lawyers in Nepal who wrote in English. He contributed to international forums and journals in the areas of law and justice, and represented Nepal globally and expanded the country’s links with foreign professionals.
Shrestha also helped the bar launch projects and collaborations in areas of common interest, including legal aid and human rights literacy. His contribution to cultivating faith in the rule of law even during the Panchayat system, which was notoriously intolerant of dissident views, was laudable. His exposure to the constitutional legal literature of his time gave him extra strength in his profession. In constitutional law, he remained one of the leading figures in the country, not to mention that he was involved as a lawyer with most of the revolutionary constitutional cases that were resolved by the Supreme Court in the 1970s to 1990s.
Shrestha defended freedom of speech and due process rights in the criminal justice system for many political dissenters. He teamed up with senior advocate Ganesh Raj Sharma to defend former prime minister BP Koirala at the Special Court hearing several treason charges against him. Similarly, Shrestha contributed immensely to the case of KI Singh who faced sedition charges. The justice sector remembers his oral presentation in Dhankuta in the case of Bhim Narayan Shrestha, where the prosecution argued for capital punishment. At times, Shrestha also had to face contempt charges at the Supreme Court and bear punishment, as he did not like to accept the court’s interpretation of free speech. The courage that a lawyer would need to plead against censorship laws and stand out as a dissident in a closed political system needs no extra mention here.
Shrestha contributed significantly to institutionalising writ jurisdiction in Nepal, establishing common law principles and enhancing the role of the judiciary in constitutional and policy issues. He stood in defence of the power of judicial review even during the Panchayat system. His cases helped cultivate modern thinking and the concept of constitutionalism in Nepal. He has contributed to almost all new areas of law in the country’s traditional legal system.
The author had the opportunity to know the trio of Nepal’s law profession—Motikaji Sthapit, Ganesh Raj Sharma and Kusum Shrestha—almost together. Sharma and Shrestha were on the left of the intellectual tradition, at least until their adulthood, and Sthapit was on the right. They were all good readers. It is not just the profession, but also this habit, that brought them together. Shrestha was a modern reader as well. Although constitutional law was his passion, he enjoyed political thoughts too. He was sometimes radical in his opinions. During the mass movement in 1989-90, his unwavering stance was that an Interim Constitution should be enacted before the people could exercise their right to draft the final constitution themselves.
Country boy at heart
Sharma argued that while national reconciliation between democratic and nationalist forces was a must to set aside geopolitical challenges, the opportunity for consistent evolution of the constitution and legal traditions must be provided in the country to institutionalise democracy and the rule of law. Sharma was unyielding in his opinion that constitutional development suffered because the forces that separated the nationalists and the democrats were manipulating the situation. At the end of their careers, Sthapit and Shrestha succumbed to this line of thought too.
Kusum Shrestha led and represented his generation of graduate lawyers. They all were constitutionalists; they believed in democracy and the rule of law. They stood for high ideals in constitutionalism: The rule of law, basic liberties, separation of powers, independence of the judiciary, the power of judicial review and an accountable system of government. All of them saw a ploy in the Maoist armed struggle and attacks on the vestiges of democratic power. None of them believed in miracles. A country boy at heart, Kusum Shrestha was a man ready to laugh and cajole, discuss and adapt. The rule of law is still in bad shape in Nepal. The challenge for the legal profession is to keep up with the values that Shrestha infused into it.