Time has come to form expert panel to recommend reforms in judiciary

  • Interview Balaram KC

Jan 15, 2018-

The controversy over the verdicts made by the Supreme Court, and by Chief Justice Gopal Parajuli, have resurfaced after activist Dr Govinda KC launched a hunger-strike demanding Parajuli’s resignation and investigation in to his allegedly forged academic and citizenship certificates. At a time when people have begun to question the impartiality of the Supreme Court, Mukul Humagain and Binod Ghimire talked to former Justice of the Supreme Court, Balaram KC, who has always been vocal against irregularities in the judiciary, to hear his views on the matter at hand, and what steps the judiciary might take to be above reproach. 

Of late, the court seems to be engulfed in disputes, first there was impeachment case against then sitting Chief Justice Sushila Karki, now, current Chief Justice Gopal Parajuli’s is under controversy over the verdicts under his tenure. How do you view this?

The way I see it, as an observer with prior experience of working within the Judiciary, there has been no interference from the executive or from Parliament. The court’s issue and disputes come from within. Ram Prasad Shrestha and Anup Raj Sharma were quite active in their role as Chief Justices, and so the court was fine. Khil Raj Regmi, who also held a role in the country’s executive as de facto prime minister, did nothing wrong to the judiciary. Yet he was quite inactive.  After his tenure, there seems to have been a competition among judicial peers. The expectation was that with every successive nomination, we would see an increased level of progress. However, I feel that just the reverse has happened.

Are you saying that you agree with Dr KC, that there are issues with the court?

The points that Dr KC has brought up, all of them except one—which is to pressurise the Chief Justice to resign—should be met. This is because his demands are tied with the right of life of the people. If low quality doctors continue to be produced, patients will die. Therefore, I must salute and appreciate Dr KC for his stance. But I don’t agree with his process of attacking the judicial system. If the judiciary is second guessed, the people will suffer. If judges start to feel insecure, justice will die. If the medical system collapses, people can go to India for treatment, but if the judiciary collapses, they cannot go to Delhi to seek justice. I think the demand for resignation was a little hurried. We would be in a poor state indeed if people were presumed guilty before all facts were analysed. 

So you’re telling us that Chief Justice Parajuli, who is in the midst of this controversy, need not leave office right now?

The time hasn’t yet come for this. Once the contentious documents and other evidence are analysed, and if some discrepancies are found that is enough to suspect the Chief Justice, it is up to the two justices presiding over the case to ask the Chief justice to leave the bench while a judgement is made. So, I’m saying again that while Dr KC’s cause is correct, the process has been hurried a little. 

It seems that the Chief Justice used his power unnecessarily and harshly to arrest Dr KC at night to bring him to court the next day. What do you think?

Dr KC is not a criminal. He is an activist. He is not fighting for his own benefit, but for a cause. He is not an absconder. He should not have been treated like an ordinary criminal. The format is that, in any case whatsoever, an accused is first provided notice to appear before court to address charges. This is the ordinary process, and this is how the Dr KC case should have moved forward. The process became extraordinary for no reason. However, it has to be said that the judge never orders an arrest, so cannot be blamed for it. That part belongs to the implementing party. 

There is a huge question mark over the way the Chief Justice Parajuli is handling cases, with accusations rife that his interests align with certain groups even since he was at Patan appellate court. With that in the backdrop, we have Dr KC’s accusations against him. Now the question here is not about defamation, it is about the underlying issue of corruption. 

Now that the issues have been brought to light, there is no way for it to be swept under the rug, due to its very public nature. There is a procedure to follow to receive justice according to the law. The Judicial Council is the organisation that reviews cases where the court’s decisions are being questioned. The bench only has the power to review cases that come through appeal, which is currently not the issue. It is high time that the Judicial Council is invoked. It takes time, but everybody must follow the due process.

We can move on from the case of the alleged forged documents, but the Nepal Bar Association itself has come out saying that there is corruption in the court. How do we move forward from this?

In my time as a Justice, I clearly said that corruption exists in the judiciary. I had also said that, as things stand, the Judicial Council cannot prosecute corrupt justices, and that we need a change in the system. When the first draft of the Constitution was brought out by the Constituent Assembly, there was an Article that mentioned that all levels of judges, from district to Supreme Court shall be punished if found to be guilty of corruption in office. In the second draft, the provisions for punishing Supreme Court judges were removed and immunity was added for SC judges. Now, when the constitution was promulgated, the person who was heading the Judicial Council and was Chief Justice, should have questioned this bias between lower court judges and Supreme Court judges. Article 136 of the Constitution states that it shall be the role of the Chief Justice to control the judiciary. Now, even if a Supreme Court Justice is involved in corruption, and admits to it, he cannot be prosecuted for it. The only option is impeachment. Why did the CA removed provisions that would treat all judges the same? The convention of Nepal Bar Association in Hetauda three years back said that it had a list of every corrupt dealing in court, with the amount each corrupt judge received in payment. The Bar had said that, if asked from the proper internal channels, it was willing to submit that list for review. If the Chief Justice then, and every chief justice since, was actually willing for reform, she/he would have asked for the list and started actions to curb corruption. But neither the chief justices nor civil society have raised voices about this list. 

We have a system where political influence is openly visible in the judicial system. How much has political interference eroded the judiciary?

The Judicial Council is a very good body to keep check of the justice system. However, where it turned out bad was in picking the constituent members. The Judicial Council consists of five members: the chief justice, another SC justice, the law minister, a member of the Bar and a member nominated by the prime minister. Now, the council is politicised because the Bar nominee, the PM’s nominee and the law minister are all politicised entities. That leaves the council on a disadvantage when political influence comes into play on any judgement by the council. We need a committee made up of the Chief Justice, the Speaker of the House and the Prime Minister to find persons in the legal field known for their outstanding contribution to the legal system to be in the Judicial Council instead of the PM’s representative. Also, the law minister is usually a career politician and not qualified in legal terms, hence shouldn’t be in a position to prosecute or hand down judgements.

The issues in the judiciary from within have made the people suspect its will to provide justice. For our democracy, how can we assure independency of the judicial system?

Our constitution is very young especially in terms of the Executive and the Legislative part. However, the judicial part is 30 years old. This is because, even though the country adopted a federal system, we did not make any changes to the judiciary. However, it is high time that we set up a High Level Committee to recommend reforms in the judiciary.  This committee has to study three things: 1) why wasn’t the document on corrupt judges prepared by the Bar not procured by the Supreme Court using proper channels, and why haven’t successive CJs since then asked for the same 2) Why wasn’t the omission of the provision for the prosecution of SC judges spoken against by all involved 3) the Judicial Council, and its constituent members need to be reworked. The committee cannot only include retired justices and chief justices, as this might breed a conflict of interest. We are talking about fact finding here, not making judicial decisions, so independent outsiders would make more sense than past judges.

One of the biggest issues for common people in Nepal, in terms of the justice system, is the lengthy wait times for receiving justice. Even now, we have a massive backlog of cases to go through. Do you see any ways to make this manageable?

This is partially manageable, and partially not. Judges cannot stop a lawyer from making his case, no matter how long it takes or how many witnesses he brings. In America, each chief justice is assigned four senior counsels that read the entire case on hand and prepare a brief for the justice. The justice is aware of every aspect of the case before judgement from four quarters. That is why the hearing times are short. Our SC justices need to be provided the manpower, the technology (in computers etc.) and libraries in their homes so that they can research cases beforehand to be ready during hearings. Also, judges should not be inundated with administrative work, as they currently are. What should have been done is providing the opportunity for a single Supreme Court judge who is interested to completely handle administrative duties, to be given that responsibility for the entirety of her/his tenure, leaving the other judges, and especially the chief justice, to focus on judicial function alone. 

Published: 15-01-2018 08:45

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