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VOL. 28, NO. 16, Dec 26, 2008 (Poush 11 2065 B.S.)
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Disciplining Judges
Dr. Trilochan Upreti
Where every sector of the society remained rampant violent, there was the lacking of the sense of responsibility and obligation towards the society, and one way demand for one’s rights erupted. Consequently, there is a great deal of impunity in every sector in the society; the violation of laws, ethics and values of the Nepalese society seems to be so widespread that one may consider such violation as a rule rather than the exception. Then, naturally it begs a question of how to discipline the people, governmental agencies, politicians, civil society and also the judges for the operation of rule of law and how to curb the prevailing wider impunity elsewhere in the society.
Corruption remained a huge and complex problem hindering development and poverty eradication mission and wishes and aspirations of the people. There exist laws, institutions and political will of the government to fight with its teeth and nails but the level of corruption has been increasing day by day. Some argue that happens during a transitional period where the government people have priority in other areas, while others maintain that it is just a pretext in a bad governance system prevailing in the country. From the few past years, Nepal Bar Association, which is an umbrella organization of lawyers and also a part of judiciary, and members of the judicial and law society have been demanding the end of rampant corruption in judiciary. They have also called on for strike opposing and calling the end of it and held the corrupt judges accountable for their wrongdoing. Transparency International, civil society, media and political parties also show their finger on unchecked and increasing corruption in judiciary. In this context, making constitutional arrangement for the public hearing in a parliamentary committee to enable for getting appointed as a judge of the Supreme Court could be one of the reasons. However, this arrangement has received severe criticism insisting that it will curb the independence of judiciary, one of the major principles of a democratic constitution.
Justices are considered to be highly reputed, trusted and credible professional people and no one assume that they could be less efficient, not qualified and be blamed for any immoral conduct. However, we normally forget to perceive that they are also the members of our society.
There is also a dispute on the continuation of a member of the judicial council, which is responsible to discipline the judges for their wrongdoing, inefficiency and regulate their administration. This is about whether he should resign after the change of government, as he was appointed for four years term, as a trusted jurist from the earlier prime minister. But the new prime minister and the government is in place now. Morally, he could have resigned by now. Legally, unless he is unable to carry out his functions for any reason, or unless he tenders his resignation, there is not an easy option to remove him or compel him to quit the office. If he is to be removed from his office, there is a procedure for removal. That procedure is of impeachment, a similar procedure on the removal of a justice of the Supreme Court. This is a complex, disputed and difficult option in a given situation in Nepal. To date, despite some incomplete and failed effort, no impeachment procedure has taken place in Nepal. However, in western countries after the new government take office either every political appointment are automatically considered to be vacated or such appointees tendered their resignation. But here in Nepal, there is a serious problem whether such appointees should continue or they must resign so as to make easy to perform the function of new government. This is also a political question which must be resolved by politically by the political actors themselves.
In this contextual setting, it is reported in the media that the Judicial Council has proposed to make amendment in its Act, which provides the Judicial Council with an authority to recommend the Commission for the Investigation of the Abuse of Authority (CIAA) to prosecute judges on corruption charges. In the past, when the CIIA Act was discussed in the parliament, the issue of giving authority to CIIA to prosecute corrupt justices was discussed but this provision was omitted on the principle of the independence of judiciary. A separate provision was made in the Judicial Council Act to take action such as undertaking investigation on misdeed, lack of efficiency and the corruption and to take necessary action, based on the result of such investigation. However, the Judicial Council remained unsuccessful to take effective action against the guilt judges; and there is a strong demand from the society that the corrupt and inefficient judges should not be protected in the name of independence of judiciary.
It may be important to note about the system or procedure followed in neighboring country India. A new Bill on the judges inquiry amendment has been submitted to the Parliament recently. The 2008 Bill is believed to provide for establishing a National Judicial Council to inquire into allegations of misbehavior or incapacity- the two grounds laid down for the removal of a judge of the Supreme Court(SC) and the High Court(HC). There is no provision in the Indian Constitution for impeachment against judges of the SC and the HC. Only one case of prosecution against the judge V. Ramaswamy was brought in May 10, 1993, which could not succeed for various reasons. He was charged for the trial before the Lok Sabha on charges of misuse of funds for purchase of 25 silver maces for brother judges and furniture, furnishings, carpets and electrical appliances, in excess of the permissible limit provided by the regulation. Recently, it has been reported in the media that the chief justice of India made a communiqué to chief justices of all high courts, Chief Justice of India Balkrishnan has recommended that any judicial officer who is "unfit, ineffective, incompetent or has doubtful integrity" may be retired from service. The Bill is expected to be passed by the parliament soon. A three member enquiry committee has also recently submitted its report on the money-on-the door of judge, a scandal indulging corruption, at Haryana was also submitted to the Chief justice of India.
It is beyond doubt that corruption is a major threat to the peace, prosperity, stability and economic development in our country. Therefore, no one, including the judge, should be left immune from their misdeeds. However, there should be a delicate balance between their independence and protection for their functions carried out in good faith. It is because that the principle of separation of power and check and balance and its inherent principle must be protected so that a functional and independent judiciary is in place who can deliver true justice to the people in time of need. One should not ignore the crucial significance of judiciary in a democratic society where the soul of the rule of law maintained by this great intuition should in no case be curtailed in one or another pretext.
