KATHMANDU, SEPT 11: Nepal will have one of the weakest judiciaries in the world if the provisions proposed by the Constituent Assembly (CA) Committee on Judicial System are included in the final draft of the new constitution, warn judges and lawyers.
Judges and lawyers came together to sound the alarm Friday amidst growing concern over the proposed provisions in a draft concept paper prepared by the CA committee. The provisions propose parliament as the final interpreter of the constitution besides also proposing appointment of the chief justice by parliament from outside the judicial service.
“There will be no judicial independence [under the proposed provisions],” said Supreme Court Justice Bala Ram KC. “Such a judiciary will not be able to protect people´s fundamental rights.”
The CA committee last week submitted the draft of the concept paper on the judiciary to the Constituent Assembly despite opposition by CA members from the Nepali Congress and the Communist Party of Nepal (Unified Marxist-Leninist). CA members from the Unified Communist Party of Nepal (Maoist) and Madhesi parties had voted for the controversial provisions.
Justice KC, speaking at a program organized by the Supreme Court Bar Association, further said that the proposed provisions violate Nepal´s commitment to judicial independence made through international instruments.
Experts on constitutional affairs said that the judiciary under the proposed provisions will be like the judiciary in non-democratic countries like North Korea, China and Cuba.
Advocate Dr Bhimarjun Acharya, who has studied trends in world constitutions, said the proposed provisions are similar to constitutional provisions in China, Cuba and the Democratic People´s Republic of Korea (DPRK), where the judiciaries function under the shadow of a political body. In those countries, the constitution is interpreted by a political body. The proposed provisions are in similar vein.
“A poliical body cannot supervise the enforcement of law and the constitution. Neither can it interpret the law and the constitution,” said Acharya, criticizing the proposed provisions.
Besides, the proposed provisions are also against the Universal Declaration of Human Rights 1948, said former president of Nepal Bar Association Shambhu Thapa.
Independent judiciary for democracy
Meanwhile, Chief Justice Min Bahadur Rayamajhee has drawn the attention of CA members to the need to draft a constitution that will guarantee a world-class judiciary.
“Our present efforts should be orchestrated to ensure a world-class judiciary that can protect rule of law and constitutionalism,” Chief Justice Rayamajhee said at a program organized by the Administrative Court on Friday.
His comments come amidst growing concern over judicial independence under the new constitution.
The Chief Justice also urged one and all to strengthen the judiciary as it serves as the foundation of democracy, and to discarding thinking that will turn the judiciary into a useless institution.
Rayamajhee appeal to everyone not to form opinions on the basis of one or two events [verdicts]. “It is necessary to evaluate the role played by the judiciary in upholding fundamental rights, democracy, constitutionalism and rule of law,” he said.
Speaking on the same occasion, seniormost Supreme Court Justice Anup Raj Sharma said that the judiciary should not be rendered toothless on the pretext of eliminating the ills plaguing it. “A weak judiciary cannot protect people´s fundamental rights,” Sharma said.