Integrity Of The Judiciary

Kushal Pokharel

Nepal’s judiciary has become highly controversial of late. Over the past few years, the situation has gone from bad to worse with a series of misconducts unfolding in this institution. At a time when the faith of the general public has been waning towards the judiciary, such incidents have further aggravated the image of Nepal’s judicial system itself. In fact, some key characteristics of judiciary have emerged in case of Nepal recently posing a great question mark over its credibility.
One of the dominant features of our judiciary at present is an inability to exhibit professional behaviour and embrace the values of integrity. While the case was not so serious in the past i.e. judiciary was relatively impartial, the situation has invited serious attention from the public circle in the last few years. Second, the process of giving judicial verdict has consisted of an ‘interim order’ for even unnecessary cases. This has institutionalised the practice of giving stay order for every type of case when it comes to something controversial. Third, the selection of judges in the bench on the basis of Chief Justice’s convenience thereby undermining the principle of merit has also been witnessed. While this is not to say that all the recent CJ’s has done the same, but such trend has been reported at present in the close circle of judges and lawyers.

Interference
Nevertheless, judiciary has also been alleged of unwanted intervention in the executive affairs of the state. Critics have accused Nepal’s Supreme Court of being unnecessarily interested in the everyday affairs of the government. Reports of the open transaction of money i.e. corruption for settling cases in the court premises are often heard though not substantiated with evidence all the time. Both the lawyers and the judges have a close nexus in the legal system to promote corruption according to various studies conducted on the state of judiciary in Nepal.
Considered as the crucial organ of the state, an independent judiciary is often the hallmark of people’s democracy if it functions as per its spirit. Although judiciary is supposed to be the custodian of safeguarding the democratic norms and values of the society and imparting equitable justice to the citizens, the case has been opposite in actual practice. It has a major role to play in balancing the conduct of the legislature and executive if these organs function beyond the constitutional mandate. As a matter of fact, the power of interpreting the constitution is vested in the judiciary.
Particularly the conduct of the existing Chief Justice (CJ) has invited severe criticism from his own fraternity. The current row over the functions of the CJ stems from the issues of his academic qualifications and other vital registration certificates. Meanwhile, the CJ has also created a negative impression among the public by sparing the corrupt officials like Chuda Mani Sharma and also relieving Ncell of its tax burden and allowing it to repatriate currency in the foreign land.
With some judges of the Supreme Court openly refusing to stay in the bench determined by the CJ, the problem has become more complicated. In the latest round of development at the time of this article preparation, the secretary level decision of the Judicial Council has ousted the Chief Justice citing that his age bar has already crossed beyond the retirement age in last year of Shrawan. However, the legitimacy of this decision has already surfaced with the CJ making his intentions clear of defying it.
The possible scenario of impeachment against the CJ is also emerging in this context. With the ruling coalition requesting the CJ to gracefully exit from his position and the CJ reluctant to abide by the same, the matter has once again tarnished the image of the judiciary. However, the opposition party has stated that it is not in favour of the impeachment. Thus, a division among the political parties over this issue that existed even in case of former CJ Sushila Karki has again surfaced thereby creating a situation of hostility.

Urgency
Hence, it is urgent to keep this institution above petty controversies and unlawful matters. Maintaining an impartial judiciary is a most to strengthen the democracy in any nation. In the absence of a fair legal system, the chances of authoritarian leaders emerging in the nation become strong and can have negative consequences for the exercise of fundamental freedoms and civil liberties of people.
Judges need to demonstrate highly ethical and professional behaviours in dealing with the cases of general public. Prioritising the cases on the basis of timeliness, contemporary relevance among others, the team of judges at the Supreme Court need to expedite the justice delivery mechanism. Trying to figure out the areas where processes can be made as short as possible will also be a welcome step though theoretically judicial processes involve multiple steps and hierarchies.

 

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