Five weeks ago the Judicial Council (JC) recommended eight names for positions in the Supreme Court. It had taken three years to arrive at this point, and immediately a huge row erupted over its choice.
Its recommendations for justices’ posts in the Supreme Court were highly controversial and raised great concern among legal professionals, the Nepal Bar Association (NBA) and others associated with the justice sector over the future independence of the judiciary. The recommendations were instantly criticized because they included some justices with 'tainted' reputations of corruption, immorality and bad conduct in their professional history.
Despite such huge controversy over the recommendations and seemingly weeks of wrangling among the political parties and others, the Parliamentary Hearing Special Committee (PHSC) went ahead just a few days ago and endorsed all eight nominees for Supreme Court service. Today everybody is demanding to know what the point is of having a Parliamentary Hearing if it simply goes ahead and endorses individuals for public service even though they are known to be incompetent, immoral and lacking in professional ethics?
The JC has, of course, been heavily criticized for, in the first place, by making recommendations for judges´ appointments that were not based on the competence of the individuals but rather on political exchanges (len-den), money, muscles, favoritism and nepotism. The controversial appointments give rise to a fresh debate about whether such an institution as the JC and the constitutional provision of the Parliamentary Hearing have any relevance or pragmatic outcome in our context. The appointment of controversial judges brings into question the accountability of the JC itself and the relevance of a mandatory constitutional provision called a ‘Parliamentary Hearing’.
Judges’ appointments in Nepal have always been controversial. There has been an absence of transparency, and appointments have often been based on personal preference and political connection. Over the course of its 60 years’ history, the country’s judiciary appears somewhat as a politicized organ, but never before has it been so politically and socially controversial. The JC’s recent recommendations for judicial appointment and the PHSC’s subsequent endorsement amount to perhaps the most controversial episode in our country’s judicial history. How can such an unholy, unconstitutional and immoral practice do other than to jeopardize the system of justice in our country? How can such controversial judges, appointed not on the basis of merit but of political allotment (bhagbanda), dispense fair justice? Whose interest are they going to serve throughout their tenure?
It is not as though this matter is happening for the first time. It has happened many times, and it has affected the appointment of judges at every court of law. The time has arrived for us all to think seriously about the following questions. Why are there no rules or, if they exist, why does no one wish to follow them? Why do we see the same thing repeated again and again in this country? Where are the professional ethics of all concerned? Is it not time to undertake a critical assessment of all stakeholders, including the judges, the JC and the PHSC, the system for their appointment and their moral conduct in post? Should the judiciary not be independent of politics and of any outside interference? How can we establish fair and impartial justice if the Apex Court itself is headed by individuals who, in the eyes of the public, are already recognized as being controversial, immoral, corrupt and incompetent? The recent gross failure of the PHSC to respect the expectations of the wider public gives off a number of very negative messages, as follows:
Firstly, an independent judiciary is the backbone of any democratic state, but in our context the pillar of independence would seem to have been destroyed. Powerful stakeholders in the country have hijacked the judiciary, and the norms and values of this vital dispenser of justice are seriously under threat. The judiciary has been forced into a very vulnerable situation, subject now to an external power. How judges are appointed - their capability, professional ethics, merit and integrity - is crucial for ensuring judicial independence. Can our judiciary still maintain its autonomy? And can it still dispense justice fairly?
Secondly, this recent unfortunate episode must be viewed as a great tragedy for our justice system. It reveals only too clearly excessive political and external interference with the judiciary and with our system of justice. Consequently public trust in the nation’s justice system is greatly diminished, and all citizens must ask what kind of justice they can expect in the future?
Thirdly, this appointment of judges in the Apex Court has raised very serious questions about the effectiveness of the ‘Parliamentary Hearing’. This process is supposed to 'increase public trust in the authorities and the institutions that they represent, and citizens are given an opportunity to evaluate the willingness, effectiveness and ability of their representatives to accommodate public voices. Conducting a Hearing is an effective means of potentially earning the trust of a public often wary of politicians' credibility’. Did the PHSC on this occasion serve its purpose? The answer clearly has to be a big ‘No’: the purpose served would appear to be that of the leaders of the so-called political parties and of those hidden powers that wish to use the judiciary to serve their sick desire to legalize and legitimize their own vested interests. It is argued that the PHSC attracted an unrepresentative sample of society, mainly powerful stakeholders with an economic or political interest in the outcome. Many are therefore asking today: Why do we need such a 'karmakandi natak' (ceremonial) hearing if it does not have any effect - especially if it fails to serve the interest of the people? Someone out there must answer this to the people.
Finally, the JC, established under Article 113 of the Interim Constitution of 2007, is a body responsible for making recommendations for the appointment and transfer of judges as well as for any disciplinary action needed against them and for their dismissal. Has this constitutional body ever fulfilled its constitutional duty? The answer is again a huge No! By recommending so many controversial individuals for appointment as judges in the Apex Court, it has made a mockery of the institution itself, its purpose and its mandate. The JC has misused its constitutional authority. Is this not the time to restructure, rethink and redefine its function, its roles and its responsibilities? Shouldn’t this institution be made more accountable to the people? Isn’t it a time, in fact, for a reform of every justice sector institution?
The time is certainly ripe for a wider debate around the following questions. What is the meaning of judicial independence, and what are its proper limits? How is judicial independence best protected, and by whom? What are the roles of lawyers, politicians, civil society and the media in maintaining the autonomy of the judiciary? Why do we keep repeating the same old mistakes again and again? Firstly, if we wish the judiciary to become a vibrant institution for the prompt and impartial delivery of justice, those who are appointed as judges must be seen to be fully competent, moral and clean for the role. The JC, which makes the appointments, must be headed and staffed by clean, qualified and non-political individuals. Clearing up the mess within the JC itself would be the first essential step towards reforming our justice system. Secondly, the JC and all courts of law must be free from political lobbying and allotment (bhagbanda). Thirdly, both judges and lawyers must maintain their integrity and morality and comply with their professional ethics.
Our country is again facing constitutional upheaval, political crisis and even greater uncertainty. It is imperative that we rapidly re-establish the supremacy of the constitution, the rule of law, the separation of powers and the full impartiality of our judicial system. Democratic principles require that all government actions are open to scrutiny by the courts of law. Those courts in turn must redefine their functions, attitudes and operating procedures to re-establish their credibility and to win back public confidence. Let us hope that the principles and values of justice will not perish in this part of the world.