By Mukti Rijal
Judiciary has been subjected to harsher scrutiny in almost all countries of South Asia during the contemporary times. The interesting part of the spotlight turned on the judicial institutions in the countries of this region is permeated in the shared motive and common aspiration for strengthening accountability of courts and effective administration of justice. However, the means used to achieve the ends – judicial performance and accountability- differ from country to country in the region. Indian judiciary for the last few years has been allegedly riddled with corruption and judicial malpractices. India has been trying to reform judicial institutions through recourse to judicial governance monitoring and tracking measures. The attempt to bring judiciary under the purview of Right to Information law is one of such initiatives. The judicial accountability bill has been proposed in India to reform and bring judiciary in tandem with imperatives of governance. Moreover, requiring judges to disclose their assets as apart of maintaining their integrity and social accountability is another attempt to achieve the end. The Indian judiciary has been reluctant to submit to these measures aimed at, presumably, enhancing integrity and accountability. The Indian judiciary and parliament have been at loggerheads for the last several years with respect to these issues but without noticeable and tangible breakthrough. However, recent reports indicate that the Supreme Court of India has agreed to go along with the demand for the disclosure of assets, among others. This did not come easy as pressure from civil society came strongly to bear upon the conciliatory gesture from the Judiciary. It is an irony that the same judiciary known worldwide for initiating and strengthening judicial activism to deliver social justice appears hesitant to stem the rot within it. The Pakistani judiciary known for its assertion of independence and landmark decisions to defend democracy and liberty of citizens is seeking to reassert its might with a resort to muscle flexing tactics against the former president Pervez Musharraf who had drawn dagger to finish off the independence of judiciary. If the Pakistani judiciary indulges into the retributive and vindictive vendetta, it might loose its sheen and shine imbued with boldness and independence evidenced by its uncompromising battle against the anti-democratic measures of the military governments in the past. It is in order to note the fact that the decision of the Pakistani Supreme Court to reinstate the parliament during the mid-nineties and restore the government led by Nawaz Sharif was hailed worldwide and this was commended and cited in similar constitutional disputes elsewhere especially where common law traditions are followed.
Coming to our own context, judiciary is confronted with a turbulent and difficult time. This is because of the innate and external reasons. The innate reason pushing judiciary to such a questionable and critical pass is its lukewarm and deficient performance in the administration of justice. Despite several attempts to modernize and strengthen judiciary as one of the important organs of the government through infusion of resources and technology, it still tends to remain a very traditional institution often resisting to imbibe into new values and liberal outlook. Its competence and internal governance system is always questioned and critically reviewed. Moreover, personal conduct, propriety and probity of some of the judges of the courts from the district up to Supreme Court are doubted, contested and challenged. The revelations brought forth by the judicial council- an agency established to recruit and monitor performance of judges- time and again validate the issues raised over the poor state of the internal governance in judicial institutions.
The external reason why judiciary is under scanner these days is particularly due to the fact that the popularly elected constituent assembly is writing new constitution to restructure state and transform Nepal from a centralized unitary state into a multicultural federal nation. Moreover, judiciary being the important organ of the government, it occupies an important space in the new constitutional scheme of affairs. A separate thematic committee made up of the constituent assembly members has been entrusted to discuss the issues pertaining to judiciary and recommend as to how the judicial institutions should be architected in the new democratic federal constitution. The committee recommendation on the constitution and mandate of judiciary for the new constitution has provoked critical comments and opposition. That the political parties from Madhesh joined ranks with the CPN (Maoists) to muster majority to endorse the recommendations to bring judiciary under the overarching purview of the legislature may not be a mere coincidence. The decision of the Supreme Court requiring the vice president to retake oath in Nepali- in lieu of Hindi- in accordance with the provision of the Interim Constitution did infuriate the political groups from Madhesh. They have interpreted the verdict of the court as a design to impose monolingual Pahade dominance in disregard to the multilingual and multicultural imperatives of the country. This should have caused them -one can guess- to react against the Court and follow the CPN (Maoist) scheme in regard to restructuring of judiciary. The CPN (Maoist) has been always critical of the performance of judiciary especially over what is alleged as the biased and selective manner with which it delivers the verdict. The sole intent of the CPN (Maoist) proposal to transform the present character of the judiciary should perhaps be to strengthen judicial accountability and introduce consistency in its approach to deliver verdict. But moot point is: will the CPN (Maoist) proposal to empower legislature / legislative panel with authority to recruit judges, scrutinize and conduct review over the cases of political nature that has been ratified by the concerned thematic committee of the constituent assembly institute and ensure judicial accountability needs to be further reviewed and discussed.
The proposal coming from the CPN (Maoist) bears some resemblance to the Federal supreme court of Switzerland which is elected by the Federal Assembly (Parliament). In Switzerland, according to Wolf Linder- political scientist of the global fame -the parliament elects the 30 full time and 30 substitute judges for a term of office of six years. However, the Swiss federal assembly is bicameral parliamentary body representing the people (National Council) and provinces that is Cantons (council of states) unlike the CPN (Maoist) stand on the all powerful unicameral legislature. Both chambers of the Swiss parliament have equal power. What needs to be mentioned here that the Swiss Federal Supreme Court composition reflects power sharing consensus model. But in our case that is most unlikely as our political milieu is more attuned to competition and adversary.
Moreover, Swiss model is unique evolved from hundreds of years of experience and practice which cannot be or should not be copied selectively to suit to one’s own convenience or interest. In this light, the CPN ( Maoist) proposal to give constitutional mandate to the national parliament to recruit judges and decide cases of political tenor– may be well intentioned and has some merits too but it is hardly reflective of democratic– libertarian discourse based on the principles of separation of power. The principal organs of the government–executive, legislature and judiciary- have separate and independent functions which constitute as rule making, rule application and rule adjudication. The separation of power principle is carefully calculated to prevent a majority from seizing power and using it without restrictions. Only a balanced and moderate government would be unlikely to develop into a tyranny because of the checks and balances maintained by the principles of the separation of power.
No institution or organs of the government is infallible and so too judiciary is. But taking cues from one or two instances of one’s own likes or dislikes the basic premises of the independence of judiciary should not be tarnished, undermined or prejudiced. In the past Nepalese judiciary, to be fair to it, has played a seminal role in defence of democracy and rights of the citizens and provided it is independent and competent it will do the same in the time to come. The first chief justice of India Hari Lal Kania had said at the inauguration of the supreme court of the independent and federal India ” the court must be quite untouchable by the legislature or executive authority in the performance of its duties.”
In this context mention must be made of the court’s decision to nullify the Royal Commission that was formed to vilify political leaders during the recent past. The judicial stand discredited the Royal regime and paved the way, among others, for a change over to republican form of government in Nepal. The Nepalese political parties should not therefore allow themselves to be swayed by passions and knee jerk reactions when it comes to choosing institutions for governance especially at a time when democratic federal constitution is being written to architect the destiny of the nation. Long term vision and perspectives should guide us so that temple of justice will not be defiled at any cost.
Source: Gorkhapatra Daily