There has been a vociferous cry around the Judicial Council’s (JC) recommendation of eight judges to the Supreme Court and the Parliamentary Special Hearing Committee’s (PHSC) hesitation to ratify them. However, this is a superfluous debate as far as the real issue of justice is concerned. Both the JC and PHSC are out to save their dignity rather than develop a sound judicial standard procedure.

The primary concern of justice should be justice. However, whether the courts have been providing real justice to the people is disputable. The real debate is whether the truth is vindicated or victimised.

Not much comes out of the lack of publicity in our court system. If hushed whisperings are any indication, the truth is often victimised. The Nepali justice system does not yet meet the highest standard of jurisprudence where we can say: let a hundred culprits escape but no innocent be punished!

Even when complaints have been found against all the recommended appointments, it seems the apex court is either indifferent to lower-level judges’ public images or is backing the judges with implied vested interests. This leaves us to question the apex court’s appointments. Are our lower courts bereft of honest judges? Are individuals with untarnished images unavailable? Where do we really stand in terms of having high standards and moral values?

Justice delayed, justice denied

Thousands of cases are reportedly pending in our three-tier court system, the greatest number lying at the apex court. Six temporary justices were retired when their term could have been legally extended. Some temporary justices could have been selected for appointment as permanent justices rather than hiring fresh candidates, as the former had experience and had performed well. Justice delayed is often justice denied.

The present tangle involves the dignity of the judiciary. Our Interim Constitution is governed by the independence of the judiciary but has an added element of check-and-balances through the PHSC, which verifies high constitutional appointees. But is the PHSC simply an ornament in this process or can it compel positive or negative action after due hearing? If negative action cannot be taken, then this whole process is a waste of valuable time and national resources.

Checks and balances

The US was the first country to implement the separation of powers theory where congressional hearings are required for some key appointments by the President. But in Nepal, there is a debate regarding the judiciary’s independence from the Parliament. The court is a public institution where the people are always watching. Normally, there is no public debate about the court but when fundamental questions are raised, satisfactory answers are required. In a democracy, the Parliament is the supreme body representing the will of the people. It is expected that both the apex court and the JC are aware of potential scrutiny of the judicial appointments. Recommendations are not only made for court judges but also for other constitutional bodies like regular or special commissions, ambassadors, and the like.

In the present case, the PHSC called members of the JC for an amicable solution but the apex court found the PHSC had overstepped its jurisdiction. This raised an important aspect of inter-institutional relations. In all cases of governmental hierarchy, the prime minister is senior to the Chief Justice, including in Nepal. Whenever a government member needs questioning, the court orders the presence of the concerned person and it is ordinarily complied with. What is so sacrosanct about the JC that the apex court refused the presence of its members before the PHSC?   

In contempt

The most sacred aspect of the judicial system is whether the court is sensitively responsive to delivering justice. The court has assumed an inappropriate weapon called ‘contempt of court’, which is often used to shield the indefensible actions of some judges. The court’s efforts need to be directed toward improving the performance of judges to meet the highest international standards so that it is unimpeachable. Currently, the superiority complex of the court and its contempt of court rulings only serve as barriers against justice.

In sum, justice needs to be transparent to be unimpeachable. The apex court should develop an effective system of monitoring judges’ performance, where flaws are detected before damaging judges’ careers and opportunities for correction. The JC can review the chief features of such monitoring before finalising the list of recommendations to prevent fresh embarrassment. The new constitution would also do well in continuing with the provision of the PHSC.

Sharma is a freelance political analyst