In the US, they have a superior court which performs like kangaroo courts. This is the court of first instance here. The vast majority of cases in the California courts begin in one of the 58 superior or trial courts, which is based in each of the state´s 58 counties. With facilities in more than 450 locations, these courts hear both civil and criminal cases, as well as family, probate and juvenile cases. They normally hear petty cases.
Issues less than US$ 7,500 are mediated through small claims mediation unit. If this model is implemented in Nepal, the superior courts should be opened in every municipality. There are 58 municipalities in Nepal and they can be taken as superior courts.
The existing district court can be a court of second instance as an appeal on superior court and as a first instance court in cases claiming more than a minimum set financial standard such as US$ 7,500, let’s say, in Nepal, for any issue above NRs.500, 000.
The appellate court should be the court of last instance and the court of second and last appeal. The decision of appellate court should be final. At this level, competent lawyers must be chosen to fill the vacant posts.
The Supreme Court should focus more on making new laws, setting precedents and reviewing cases. Supreme Court should be taking only those cases approved for a final appeal on the decision of the appellate court by a division bench of three justices (considering the voting ratio). Only rare appeal cases that have constitutional issues, misinterpretation of laws, precedent flaws, amicus curie, judicial review, and where the court needs to address and introduce new laws through interpretation, should be under the jurisdiction of the apex court.
The apex court will thus maintain a high level of censorship, integrity and authority in terms of the balance of the three branches of governance as well. The apex court should slowly refrain from getting involved in the day-to-day decision making on small petty civil suits to previously decided criminal verdicts from district and appellate.
The appointment of temporary and permanent judges should be made through promotion of existing judges and through allocation of adequate number of seats to the bar.
The tenure of the justice also comes into play if we consider the above aspect. The justices of the Supreme Court should hold the offices for life based on their seniority and experience. The current Supreme Court justices should continue holding the offices until one resigns or the office is vacated under existing laws. The check and balance of power through legislative will not let the judiciary be out of reach. Although raw and inexperienced legislature did play a part in parliamentary Special Hearing Committee, it has nonetheless established the fact that there will be scrutiny from the legislative on judiciary in the years to come.
Superior Court
If superior courts are established in the 58 municipalities, judiciary should consider opening vacancy for associate judges to find suitable human resources. Every superior court could hire about five to seven associate judges. This means that there would be a requirement for almost about 400 associate judges.
When the judiciary was established about 50 years back, we did not have enough human resources. But now we have two good law schools which produce a good number of competitive lawyers. We have adequate number of educated law graduates with LLM, Doctor of Juridical Science (SJD) and specialization in specific laws. They can serve as a associate judges for special benches such as commercial law, family law, human rights, employment, labor, tax, small claims, juvenile, women´s rights, environment, compensation, gay and lesbian rights, minority and deprived rights, etc.
Experienced associate judges could be promoted to a district court and later to the appellate. They can also serve as judges in special courts such as administrative court, tax court, labor court, juvenile court, etc. The superior courts decision generated through mediation and arbitration can serve as binding unless one party chooses to appeal to the district.
The case loads in all the courts will drastically go down with the implementation of this system, and decisions will be quicker.
There is a need to revise rules pertaining to professional responsibility of lawyers. The rules of professional conduct here in the US are extremely rigid and harsh allowing no lawyer to initiate corruption whereas, in Nepal, there is virtually no such rule. The 10 Sections of Moral Rules for Lawyers are outdated. Action against defaulting lawyers should be taken on a tri-semester basis. Any decision on conduct of lawyers should be made public on a monthly basis.
In five years of practice as an advocate and two years as a pleader, I never saw a single publication where the decision to take action on lawyers was published. The public was never made aware of the lawyers who were punished or were under interrogation.
Another area of reform should be Class Action Law Suits. The corporate sector in Nepal has always been untouched for their acts and deeds. This law allows a large group of people to collectively bring a claim to court.
I want to file a class action law suit against Janakpur Cigarette and Surya Tobacco and force them to compensate victims in Janakpur and Simara municipality who have been compelled to live a life under inhuman respiratory conditions due to the emission of tobacco particles in the air. My assumption is that the patients of lung cancer, bronchitis, asthma, skin allergies in these areas are directly correlated to the polluted emission from these factories. The class action law suit would demand that the factories be either resettled in a government-specified industrial zone outside the residential zone or be shut down.
The law suit could also demand that the employees be guaranteed life insurance of a fair market value and scientific and adequate physical protection procedures be adopted for the workers inside the factory areas through proper protective eye wares, protective clothes, etc. This is my dream case and I will pursue it definitely in the future, whenever there is a provision for class action.
(The writer is an LLM from Golden Gate University, US, and Tribhuvan University)
santosh_giri@hotmail.com
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