Principle And Functioning Of Judiciary

KushalPokharel

When the prominent French scholar Montesquieu propounded the theory of separation of power, he clearly stressed on segregating the role of the three branches of the government- legislature, executive and judiciary to perform their specialised functions without interfering in the domain of each other. Although all of them have their own significance in the governance system, the role of judiciary is much pronounced.

Entrusted with the task of administering justice in an independent and impartial manner, judiciary is regarded as the ultimate centre of trust and hope for ordinary citizens who have become the victim of injustice, discrimination and other inhuman sufferings. It also stands as the last resort for the public when the legislative and the executive machineries of the government go haywire.

Tendency

Contrary to the theoretical aspect, the actual functioning of the judiciary has exhibited the tendency of crushing the democratic principles. This is true in case of all the countries in the world, the only difference is the extent of deviations from the cardinal principles. Supposedly the epitome of justice, the judges themselves have been found in ethical malpractices ranging from the moral downfall to the bribery.

In the United States which is a strong proponent of liberal democracy, a total of fifteen federal judges have already been impeached. Even in the largest democracy- India, five judges have faced the impeachment proceedings so far although none of them were impeached as they tendered resignation in advance. Contrary to the US and the Indian case, in Nepal, the motion of impeachment was unethically tabled in the House against the then Chief Justice last year, only to be scrapped later.

Examining the history of Nepal’s judiciary, we find that this institution has remained fairly impartial since its establishment. Barring a few cases like the verdict of restoring the parliament dissolved by the former PM ManmohanAdhikari in 1995 directly infringing on the rights of the executive, the judiciary has remained non-controversial adhering to the principle ofconstitutionalism and rule of law. But this scenario has drastically changed in the last few decades.

Whether we refer to the case of the appointment of the justices with bad reputation, corruption and immorality in their professional history or the series of recent decisions in giving clean chit to tainted officials like Chudamani Sharma and GopalKhadka and allowing Ncell to repatriate its profit, the judiciary has been bitterly exposed in terms of its code of conduct and professional integrity.

In the latest round of controversial judicial decisions, the order of the Supreme Court to detain Dr.K.C. accusing him of the contempt of court has invited severe criticisms not only among the public but also the political fraternity. With the former ministers and PMs publicly demanding the release ofDr. K.C., this matter has further tarnished the image of the judiciary also calling for serious investigations into the issue of the judges’ conduct.

Staging a hunger strike demanding the resignation of the present Chief Justice due to the latest decision of his bench to reinstate the sacked IOM Dean, the medical reform activist has exposed the dark side of the judiciary demanding further probe into the matter. While there seems to be no direct contempt of court for expressing an individual’s opinion on any judicial verdict as per the constitution, the manner in which the doctor was arrested has created great suspicion over the real intention of the court.

What is concerning is the fact that even the home minister who is also the present PM was unaware of the arrest warrant only to know about it through media. Instead of allowing a time to appear before the court to face the contempt of court trial which is the general practice in case of ordinary citizens, the Supreme Court has treated the doctor like the most wanted criminal. Hence, deliberate intention to supress the voice of the doctor seems obvious.

Although it can be argued that the manner in which the valiant doctor raised this issue could have been more polite and courteous, his arrest is condemnable in every ways. It is unwise on the part of the Supreme Court to wage a battle against the highly spirited doctor who stands impeccably tall in his moral ground.

The doctor has already made clear that his hunger strike will continue at any premises. Moreover, serious allegations against the current Chief Justice made by Dr.K.C. needs to be investigated with due procedure. As of the existing constitutional provision, impeachment is theonly way by which the Chief Justice could be sacked by the parliament if he is found guilty. Else, the Chief Justice could step down on moral ground.

 

Investigation

In a welcome move, after hearing the statements of Dr.K.C., the apex court has decided to not only release him but also to acquire the SLC certificates and citizenship photocopy of the Chief Justice (CJ) to investigate into the allegations directed at the CJ. Expressing solidarity to the doctor is a huge mass of public and distinguished professionals from various walks of life.

It is high time that the lost stature of judiciary be restored in the country. Otherwise, the legitimacy of judiciary which primarily hinges on public faith will fade out.

 

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