The recent controversy relating to the functioning of the Judicial Council has raised a fresh debate in the political and legal circles. The debate arose following news reports that Law Minister Dev Gurung with support from and on the advice of Prime Minister Pushpa Kamal Dahal exerted pressure on Motikaji Sthapit, a member of the council and nominated by the previous government either to resign from the council or not interfere with the proposed appointment of Maoist-picked individuals in the judiciary.
Judicial Council is an exclusive authority for dealing with key issues related to independent judiciary and judicial administration in the country. Headed by the chief justice of the Supreme Court, the other members in the Council are Minister for Justice, the senior most judge at the Supreme Court, a person nominated by the President from among jurists, and the senior advocate or an advocate who has at least twenty years of experience and appointed by the chief justice on the recommendation of Nepal Bar Association.
The first three members including the Head of the Council are ex-officio members and the other two members, as said, are nominated on the recommendation of prime minister and Nepal Bar Association. The term of office of the members so nominated is four years and they may be removed from office on the same grounds and in the same manner as provided for the removal of judge of the Supreme Court. The constitution no where requires nominated members to tender their resignations to any party leader or to any minister or be accountable to them. Any sort of pressure or request upon any member of the Council to work in the party or government line is a blatant violation of the constitution and a naked attack on Judicial Council, which is ultimately an attack on judiciary.
The Judicial Council is a unique provision advanced by the Interim Constitution of Nepal 2007 for making recommendations or giving advice concerning the appointment, transfer, disciplinary action and dismissal of judges and other matters relating to the judicial administration. The provisions for Judicial Council and Constitutional Council can be called as the innovations of Nepalese jurists who for the first time tried to incorporate the same in the 1990 constitution of Nepal. Sri Lanka, may be inspired by Nepali constitutions, incorporated similar provision in her constitution in late 2000.
Article 122 of the constitution of Sri Lanka has a provision for Constitutional Council, which consist of the two vice-presidents, the prime minister; the leader of the main opposition in parliament; the leader of the House in Parliament; the member of the council of ministers in charge of the subject of constitutional affairs; the chairman of the Chief Ministers’ Conference; two retired judges of the Supreme Court or of the Court of Appeals established by the constitution, or any other law, appointed by the president after ascertaining the views of the chief justice, and who serve for a period of three years. The Chair of the Constitutional Council is assumed, in rotation, by the two Vice-Presidents — each Vice-President holds office as Chairperson for a period of six months at a time.
The Judicial Council in itself and in its composition has a significant meaning. This is a special arrangement which is not generally found in other countries with a common law system where judges are normally appointed by the head of state acting on the advice and recommendation of council of ministers. Why did the framers want such an arrangement in the Nepali constitutions? The normal answer to this question is that they wanted judiciary to be completely independent from other branches of the government, namely the executive and legislative so that the judiciary could provide a real check against the power of the executive, and the excesses of the executive. The composition of the council, as a separate and independent mechanism, therefore, means that there is no chance for active roles on the part of government in the appointment of judges and there is no room for politicizing and interfering with judicial appointments. This is the very message of Nepali Constitution to all rulers and politicians including the Maoists.
The Maoists and other rulers should know that the rule of law and independent judiciary are not just mere slogans of democratic government. They rather form the core of democracy without which no democratic government can be formed. Under its reign, governments exercise authority as per the law and are themselves subject to legal constraints. And, citizens are secured from arbitrary use of power. The notion of the rule of law can never envisage the law being exercised by ministers to fulfill their ulterior motives. Therefore, let us not interfere with the judicial independence. And, let us rule out any party carders or party affiliated persons as eligible for appointment in the judiciary. The judiciary can never be the proper place for appointing party workers.
Dr. Acharya is a constitutional lawyer. He is the writer of ´Fundamental Rights in the World Constitutions´.