Protecting The Sanctity Of Judiciary

Kushal Pokharel

In the latest round of incidents fueling controversies in the judicial and political circle, the special hearing committee of parliament has rejected the nomination of the acting Chief Justice (CJ) to the post of CJ by two-third majority. Posing a severe question mark over the credibility of Nepal’s waning judiciary, such an unprecedented move has also called for the need to examine the relevancy of the hearing committee which was introduced in Nepal’s interim constitution 2007 after the second April uprising.

Question
More importantly, the impartial role of the committee has been questioned due to the manner in which the decision was reached. What is noticeable here is that the committee took several days to reach the decision by postponing meetings which clearly gives an indication of dirty politics behind the scene to affect the hearing. Moreover, while there were several questions raised in the names of former CJs who passed through the same process, all of them had got a clean chit in the past.
While such committees are sovereign in principle to take decisions, the criteria for rejection holds no objective grounds according to a prominent constitutional expert Bhimarjun Acharya. In a candid interview with Fireside- a popular talk show on Kantipur Television, he strongly objected to the committee’s recent decision for being politically motivated. Ranging from the dissatisfaction expressed in the answers of the acting CJ to the skepticism around his fake certificates, only subjective reasons have been given. Why couldn’t the committee say that the certificates have been proven fake instead of mere suspicion? Can intuition play a major role in reaching a decision of such prominence? What will happen if the certificates are not found to be erroneous after careful examination?
In fact, the news of the fake academic credentials and corrupt practices of the judges have increasingly appeared in the media particularly in the past few years. This is really an unfortunate situation. With the citizens already losing trust in the country’s justice system, such reports have only exacerbated the situation. What is more concerning is the fact that the judicial council entrusted with the task of probing into the work and ethical issues of the judges have remained inactive without taking any concrete actions till date.
No less significant is the role of the Constitutional Council, a main organ for nominating the heads of the constitutional bodies as provisioned in the Constitution of Nepal. Even in the present case, the nomination of the CJ was made by the council whose chair is the Prime Minister. In this scenario, a moral question appears to the council of nominating an incompetent judge who was deemed incompetent by the hearing committee.
By now, it is an open secret that the judicial system of the country is politically motivated and increasingly corrupt. A latest survey by Transparency International (TI) has found that the political parties in Nepal are the most corrupt institutions followed by bureaucracy. Among other major institutions are police, judiciary and private sectors. Hence, the maladies in the judiciary can be inferred. But a detailed probe into the irregularities happening in court under the leadership of the CJ remains an overlooked agenda. Owing to the nature of the functions of this vital organ, no other institutions can directly grill the judicial officials.
Notwithstanding the above mentioned points, the role of the Nepal Bar Association is equally problematic. At a time when this apex body of lawyers could play a balancing role between the Bench and the Bar for judicial supremacy, this institution is itself mired in political controversies.
Independent judiciary, a vital institution for preserving and promoting democracy, has come under severe attack from the political parties which is a sign of bad omen for strengthening the democratic practices and rule of law in the country. An unholy desire of policymakers to get the decisions of the parliament and executive approved by the court has also played its part in the current decision of rejection. It is learnt that the government was dissatisfied with the acting CJ for his decisions to issue a stay order in the case of ban on Maitighar Mandala for protest and other such verdicts of public importance.

Reform
The beginning step of reforming judiciary can be the reorganisation of the Judicial Council. The current composition of the council depicts the high-handedness of the political people instead of the judicial officials calling for reshuffle. Likewise, a firm commitment to abide by the principles of separation and balance of power should come from all the three major organs of the government. This will require depoliticising not only bureaucracy but also judiciary. Needless to say, a stern action against the guilty judges should be taken on time so that they are stuck earlier in their career for the violation of code of conduct.

 

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