Is Nepal’s judiciary independent?

Published On: February 3, 2021 08:30 AM NPT By: Abesh Adhikari

Abesh Adhikari

Abesh Adhikari

The author is an attorney at Lex Jurist, a Kathmandu based law firm

The influence of political parties is the most common threat Nepali judiciary is facing. When judges are appointed based on political affiliation judiciary will be politically influenced.

Among the three branches of a state, judiciary is considered to be the most independent and impartial. It must be fair, impartial and uninfluenced. The theory of Judicial Independence has been widely accepted, studied and taught along with the theory of separation of power and checks and balance. The concept itself was developed around 18th century and has been popular since then. The main idea behind judicial independence is that the courts should not be subject to improper influence from any other branches of the government. Competent and bold judicial administration including unbiased judicial selection, decisions given by the judges and the ethics of a judge are other components. Other two branches of the government—the Executive and Legislature—must acknowledge the orbit of judicial independence and keep itself outside the circle.

In practice, however, judicial independence is often challenged. This is more so in Nepal, a country with a young democracy and infant republic system. The political influence over the selection of the judges of Apex Court and High Court has been debatable. Over the past few years many questions have been raised on the influence of the government on judicial appointments. The Apex Court which was considered strong, independent and ethical even during the monarchy has become the topic of heated debate. Not only the appointments of the judges, the ethics of the decision makers in high profile cases has been questioned and the tussle between the media and the court has been witnessed. Countless incidents have eroded people’s faith in judicial independence.

Judicial independence is not an absolute concept. It has been studied along with judicial restraint. Both judicial independence and judicial restraint aim to minimize the influence of other mechanisms in decision making. The decision making capacity of a judge is the most important factor to prevent threats to the judiciary. But the threats exist. The most common threat is the influence of political parties in the judiciary. When judges are appointed based on political affiliation judiciary will be politically influenced. Pressures from political parties on judges can also lead to erosion of judicial independence.

Media also pose threats to judiciary. While exercising freedom of expression and speech, media may be dragged into defaming the judiciary. Framing of headlines in newspapers about judiciary and its decisions can shape wrong opinions about the judiciary among the common people.

That said, it is not to claim that media should not write about the judiciary. But there have been many incidents over the past couple of years where media have contributed to erosion of faith in judiciary.

Big media houses and the Apex Court have often entered a situation of clear tussle between the two. The constant power struggle between the then Chief Justice and one of the reputed media houses was clearly observed when the Apex Court ordered the owner of that media house to be present in the court a few years back.

There was a case where the Apex Court was attacked by the media. The struggle between media and the courts seems to be going on.

In the current case of House dissolution, questions have been raised about the ethics of judges. All eyes are on the Supreme Court regarding whether the Court will validate or invalidate the decision of the PM to dissolve the House. Questions have been raised about the formation of Constitutional bench as well.

Yes, it is the right of the Chief Justice to choose the members in the Constitutional bench but why did the Chief Justice choose his ‘yes men’ in the Constitutional bench and why were all juniors selected?

Along with the formation of the bench, one of the issues raised by the media was related to alleged meeting of Apex court judges with the Prime Minister. A few news sources quoted that judges including the current members of the Constitutional bench met the Prime Minister in person and discussed the constitutionality of House dissolution.

In response to the news the Apex Court’s administration responded with a written press release claiming that this kind of unproven news impacts the image of the judiciary as well media’s professionalism.

Freedom of speech is widely exercised in a democracy but all including the media should use that right wisely. It should be realized that once shattered it will be hard to restore the image of judiciary. Let us all think about the judicial independence.

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