Co-authored with Mohan Karn and published by The Kathmandu Post

Through the promulgation of the 2015 constitution, Nepal emerged as a federal country. While power at the executive and legislative level was divulged in the local, provincial and federal tiers, one significant arm of the government continues to remain non federalised in ‘federal Nepal’: the judiciary. Arguably, judiciaries in Nepal remain unitary as provincial governments have little say in fundamental judicial processes including the appointment of judges, reviewing disciplinary action and legislative coordination.

Advocate Dipendra Jha, in his book Federal Nepal: Trials and Tribulations, identified the judiciary as ‘the most conservative’ aspect of the constitution. The author has dedicated a chapter on the judiciary, wherein he argues that the constitutional provisions related to the judiciary are not only contradictory, but also regressive in some respects. On top of that, he opined that the judiciary is not federalised yet. For instance, even though the legislative and executive state structures are defined as federal, provincial and local, it appears as though the term ‘federal’ has intentionally been dropped from the Supreme Court.

This is clear in a brief review of judicial processes. All the power to appoint judges to the supreme court, high courts and district courts are vested in the centralised judicial council, while the judicial staffs’ appointment, transfer, and disciplinary actions are under the purview of the judicial service commission. In this context, the state judicial service commission has been provisioned in Article 156 of the constitution but its power and functions appear to be limited and are yet to be defined by law.

This calls for the need to federalise the judiciary. The first and foremost step for such judicial reform should begin with the judge’s appointment process. In Nepal, the judicial council is the primary mechanism for appointing judges yet the model for the council simply repeats its predecessors. Nepal is no longer unitary and the ‘judicial council’ provisioned in the new constitution has not addressed the federal aspirations of the people and directly contradicts the federal spirit of the constitution itself. 

Secondly, the existing body has already received a lot of criticism about its structure and the process as many critics argue that it has fostered political interference, nepotism, and favouritism in the judge appointment process. In addition, it also has been non-inclusive in terms of representation from provincial actors and all genders and ethnicities.

Need to reform

The history of Nepal’s ‘formal judiciary’ is not very extensive.  The first Chief Judiciary, Pradhan Nyayalay, was established in 1941, which was later converted into the Supreme Court in 1956. The seven constitutions that the country has promulgated from 1948 to 2015 have laid particular emphasis on the independence of the judiciary. After the restoration of democracy in 1990, the constitution promulgated thereafter adopted the concept of the ‘judicial council.’ Nepal’s evolution of the judicial council was subsequently lauded as an exemplary model for the judicial appointment in South Asia. After the formal end of the decade-long armed conflict in Nepal, the Comprehensive Peace Agreement also reiterated the importance of an independent and competent Judiciary.

When introduced in 1990, the concept of the judicial council was apprehended to be rather powerful as strengthening judicial independence was seen as a mechanism to curtail the power of the king. The judicial council consisted of a majority of judges (three judges out of five members) in 1990 because the constitution was drafted under the chairmanship of the then Justice of Supreme Court, Mr. Bishwanath Prasad Upadhyay.

However, the judge appointment process by today’s judicial council is largely still overly politicised. A majority of the members (three out of five) of today’s Judicial Council are actors with highly influential political backgrounds who have leveraged their political interests and influences in the appointment of judges in the high courts and supreme courts. This is apparent in the fact that many highly qualified judges have been dismissed over less qualified candidates. It is also clear in the politics swarming some representatives. For example, former chief justice Gopal Parajuli was mired in controversies regarding discrepancies in his stated date of birth and doubts over his academic qualifications.

Past and current efforts regarding judicial reform, however, have also drawn some flak. Many donor-funded initiatives for judicial reform are mainly focused on infrastructural development, capacity building and policy reform. They have made modest or limited impact. Debates and interventions on judicial reform should move beyond efforts that focus primarily on transitioning into the judicial council structure and, instead, should focus on translating what this new structure means in the Nepali context by focusing on reforming policies to maintain the council’s independence and credibility.

It seems that the people and the society agree on the failure of the judicial council and the (long overdue) need for  its reform. For this to happen, wider public debate on the future structure and process of the judge appointment system is essential to ensure that the transparency, accountability, competence, independence, and fairness of the judges and the judiciary is maintained. Having (hopefully) learned from previous mistakes, the actors leading these discussions should ensure that no doors are closed; the public deserves to be a part of the discussion and should not be overlooked in the name of bureaucratic necessity.

Options

While considering potential reforms to the judicial council, useful International comparisons can be drawn. In India, the president is required to consult the governors of concerned states during the judge appointment process for high courts. In South Africa, a fundamental aspect of the judicial service commission is that it maintains representation from provincial actors, ensuring that their voices are not only accounted for, but are also guiding discussions related to their localities. In Canada, independent judicial advisory committees have been introduced at the provincial level, to foster dialogue between local and federal actors.

In the federal context, the judicial council must include actors from provincial structures such as provincial governments, province bar associations or province-level representatives from academia.

Furthermore, the judicial council, rather than focusing on representatives with clear political backgrounds, should also have actors who are independent from politics and represent academic institutions or professional institutions. Similarly, in terms of the process of selecting judges, there should be mechanisms for consultations with province level structures.

The Central Judicial Council could also consider forming a judicial advisory board in each province, which will be tasked with identifying potential judges in order to include more voices in the appointment process.

Above all, to really federalise the judiciary, it is high time to start the debate afresh. Judicial reform had been discussed shortly after the constitution of 2015 was promulgated but quickly fizzled down. By ignoring the issue, we will simply be watching a rerun of history and by allowing the system to continue without reform, we are further compromising on judicial independence.

– The authors are human rights researchers associated with Terai Human Rights Defenders Alliance.

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