Trampling on judiciary

The Constituent Assembly’s Committee on Determining the Judicial System recently passed some controversial provisions relating to the judiciary of the country. UCPN (Maoist) members in the committee, backed by the Madhesi People’s Rights Forum and some smaller parties, passed a provision authorizing parliament to appoint, nominate and punish judges. Another proposal passed was that the chief justice of the topmost court could be a person from outside the Supreme Court (SC). The committee also passed a provision making the legislature the final authority to interpret the constitution. In other words, parliament itself is the final interpreter of the laws it passes! It reminds Nepalis of the Royal Commission on Corruption Control (RCCC) – the extra-judicial body set up by then king Gyanendra after his coup in 2005 to browbeat political opponents into submission on the pretext of controlling corruption. The RCCC was given the mandate to probe, prosecute and sentence offenders and to frame its own rules!



These provisions may look good in a totalitarian communist regime or in banana republics or countries where an independent judiciary exists only in name. Ours is not that case. We have a judiciary that has shown its mettle from time to time. Of course, like most institutions in Nepal, it too is plagued with ills and needs reforms which successive chief justices have pledged. We hope the reforms process will begin soon. But undermining the judiciary because of real or imagined flaws is no solution. It is unacceptable as well.



Our existing system of appointing judges – in the district, appellate and apex courts – is time-tested and effective. The Judicial Council, comprising the SC chief justice as its head, the law minister, the senior-most SC justice and one representative each of the prime minister and Nepal Bar Association, appoints all justices. In the case of the chief justice, the Constitutional Council – comprising the prime minister, the outgoing chief justice, the chairman of the Constituent Assembly (CA), the leader of the opposition party in parliament, three ministers designated by the prime minister and the law minister – makes the appointments. What better body than this can the country have? If any of the lower court judges indulge in malpractices, there is a proper channel for punishing them. In the case of SC justices, parliament has the power to impeach them.



Do we need to remind our lawmakers that for a well-functioning democracy none of the three branches of the state – executive, legislature and judiciary – can be allowed to trample upon or interfere in one another’s turf? In any real democracy, it is the apex court that interprets the laws and so it is in Nepal as well. We do not see why this needs to change. Moreover, a doctrine of separation of powers and effective checks and balances are the hallmarks of a true democracy. The Committee on Determining the Judicial System is not the final authority to determine the role and function of the courts. The three provisions passed by it have to be passed again by at least a two-thirds majority of the CA. We hope they will be soundly rejected.

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