DR BHIMARJUN ACHARYA
The committee on judicial system of the constituent assembly has, inter alia, approved some controversial provisions pertaining to the judicial system of new Nepal. They include: (1) the appointment of chief justice from outside the career justices, (2) the appointment, transfer and dismissal of judges from the parliament and (3) the final authority of parliament to interpret the constitution and the law. These ideas were put forward in the committee by Unified Communist Party of Nepal (Maoist) with support from Madhesi parties and some other smaller parties and were passed by a majority in the committee.
Of the three contents discussed and approved by the committee, the first content is familiar in other democracies too, which is exercised on the basis of merits of the candidate. But the latter two contents appear to be a complete betrayal of the doctrine of separation of powers and effective checks and balances. They undermine the independence of judiciary and its role to uphold checks and balances among government departments.
One cannot accept any institution with a political nature, including parliament, which has the sole authority and control in and over the matters of appointment and dismissal of judges.
Conception of the separation of powers, one of the principal doctrines of modern constitutionalism, can be summed up in the following propositions: (1) There are three intrinsically distinct functions of government, the legislative, the executive and the judicial; (2) these distinct functions ought to be exercised respectively by three separately manned departments of government; which (3) should be constitutionally equal and mutually independent; and finally (4) the judiciary will scrutinize all actions performed by other coordinate branches in the light of constitutional validity. Nearly all modern constitutions, from the document written at Philadelphia in 1787 to the French Declaration of the Rights of Man and of the Citizen of August 1789 up to the constitutions of new states of Africa and Asia, provide for the separate establishment of legislature and executive and give exclusive power of judicial review to the judiciary. There may be no exceptions of separation of powers and checks and balances among major organs of the state except in authoritarian or totalitarian regime.
Judicial competence along with full independence of other branches of the state is one of the key issues of the doctrine of separation of powers and checks and balances. Among major ingredients of judicial competence and independence, the appointment and selection process of judges and the final authority of interpreting the law and constitution is one. The notion of independence includes both institutional independence and individual independence. The former pertains to the judiciary as an institution, independent of other branches of powers, namely the executive and the legislature. Whereas, the latter pertains to the freedom of individual judges from unwarranted interferences when they decide a particular case. And the final authority to interpret law and constitution is derived from the power of judicial review vested with the judiciary, which is always directed against the tyranny of legislature and executive.
In order to guarantee the independence of the judiciary, international law requires states to appoint judges through strict selection criteria and in a transparent manner. Unless judges are appointed on the basis of their legal skills, the judiciary runs the risk of not complying with its core function: Imparting justice independently and impartially. Therefore, clear selection criteria based on merit is an essential guarantee of independence. There are two crucial issues related to the appointment of judges dealt with by international laws. The first is related to the criteria applied to the appointment. The second issue consists of the body, and the procedure within that body, in charge of appointing members of the judiciary. In order to avoid appointments that would seriously undermine the independence and impartiality of the judiciary, international law specifically excludes selection criteria such as a person’s political views, race or color.
The judicial council is a unique provision advanced by the Interim Constitution of Nepal for making recommendations concerning the appointment, transfer, disciplinary action and dismissal of judges and other matters relating to judicial administration. 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. The council, as a separate and independent mechanism, ensures that there is no room for active government role in the appointment of judges. The idea of such an arrangement in the Nepali constitutions since 1990 is that we want the judiciary to be completely independent from other branches of the government so that it can provide a real check against the excessive use of powers by the executive or the legislature.
Sri Lanka, maybe inspired by our provisions, incorporated similar provision in her constitution in late 2000. Article 122 of the constitution of Sri Lanka has a provision for Constitutional Council (CC), which consist of 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 CC 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 parties who have supported provisions for interpreting the constitution and appointment and dismissal of judges by the parliament should know that rule of law and independent judicial system are not just mere slogans of democratic government. They rather form the core of democracy without which no democratic government can be formed. How can a body, which makes law, be the final authority of interpreting the same.
Thus, one can agree that a justice or even a chief justice can, irrespective of his/her caste, sex, color, religion, language, race, origin, conviction or any of these, can be appointed even outside the judicial service if the selection process is solely based on merits and only merits. But, one cannot accept any institution with a political nature, including parliament, which has the sole authority and control in and over the matters of appointment and dismissal of judges. And, nor can one accept the parliament as an alternate to judiciary to have a final say in the interpretation of law and constitution. It’s because we want new Nepal with full of supremacy of law i.e. constitutional supremacy rather the supremacy of executive, legislature or even the judiciary.
(Writer is a constitutional lawyer.)
Published on 2009-08-30 07:46:56