- The recent hearings on Supreme Court justices have only highlighted a pressing need to reform the judiciary
Jun 2, 2014-When the Parliamentary Hearing Special Committee (PHSC) was hearing the case of Justice Damodar Sharma, who had been recommended by the Judicial Council (JC) for the position of Chief Justice, the media reported that one committee member made a highly personal attack against him. “Jogi banke danka dala,” Justice Sharma was told, implying that though he sported a beard like a hermit, he had amassed wealth illegally. Another Justice, Gopal Prasad Parajuli, while being considered for the position of Supreme Court (SC) Justice, was grilled for being a ‘polygamist’. He had to explain his personal reasons for remarrying and was forced to tell the parliamentary panel that his wife had died of cancer.
There are no clear guidelines, terms of reference or ethical codes for the PHSC to maintain parliamentary oversight in the appointment of Supreme Court Justices. This is worrisome. Had there been a guideline for such parliamentary hearings, recommended justices would not have to listen to such personal and humiliating comments made against them. A Constituent Assembly (CA) member making such personal statements against a Justice undermines the prestige of the post. And the devaluation of the post through unprofessional questioning and personal attacks ultimately weakens public faith in the institution as well as the democratic system.
The PHSC did not discuss the candidates’ contributions to judicial reform. The parliamentary panel hardly questioned the candidates on how they planned to deal with the backlog of legal cases or how they would ensure inclusion in the judiciary. Instead of engaging in a substantive debate on judicial reform, personal allegations were made. This shows that judicial independence is not only hampered by the state but also by existing legislation.
These are bad times for the judiciary. The public image and respect for the institution has eroded due to faulty PHSC hearings and the JC members’ behaviour. Furthermore, despite the questioning, the PHSC did not reject a single judge—it approved all eight of them. If there was no merit in the allegation against these judges, then why was such a drama staged? If judges recommended by the JC are always to be confirmed by the parliamentary panel, then there should not be a mechanism that seeks complaints against recommended judges and conducts a thorough hearing. If the panel wished to send a message to the public that the PHSC acts on merit, it could have rejected a few names it found incompatible. Dropping two or three controversial names could have functioned as a face-saving act for the parliamentary panel. But since all eight judges were endorsed by the parliamentary panel, the hearing seems to have been merely a ritual.
As all the recommended judges have been approved by the PHSC, they will be Justices at the SC now. A few might even lead the judiciary after a few years. Some lawyers associated with the Nepal Bar Association had vehemently opposed the recommendation of these eight judges. How then can these lawyers plead before those very judges at the apex court? SC Justice Ram Kumar Prasad Sah wrote a note of dissent about two judges recommended by the JC. Sah will soon be Chief Justice of the Supreme Court and these two judges will work under him.
Political power sharing
Another controversy arose when the JC member Khem Narayan Dhungana visited CPN-UML headquarters in Balkhu to explain the JC’s decision to nominate particular candidates for SC Justices. Currently, everybody knows the political sympathies of two JC members. A majority of judges acquiring their positions through political connections would only result in the discrediting of their decisions. The Nepali Congress’ lip service to the independence of the judiciary would hardly protect democracy since this party itself is reluctant to challenge the Commission’s recommendations.
Since the controversy, the issue was debated at two bodies of the Constituent Assembly—the Constitutional Record Study and Determination Committee and the PHSC. These debates have highlighted the need for a transformative and radical approach to judicial reform.
Shouldn’t there be a code of conduct for JC members? Finding politically neutral persons may be difficult but it can be made compulsory that after being appointed as JC members, they should not do anything that give away their political leanings. So far, all debates at the PHSC concerning the judges eventually seem to end in bargaining among the political parties to retain loyal judges. Various media outlets have raised this point but they have failed to dig deeper. For instance, the media takes positions for or against the recommended names but they do not write what long terms measures need to be taken to reform the judiciary.
Need for reform
The judiciary is the third pillar of the state and providing immediate justice to its people is the state’s primary responsibility. However, there are almost 17,000 cases
pending at the Supreme Court. Everyday, cause lists are prepared but the final
hearing dates keep changing. Civil and criminal cases take years to be decided. This has happened because there are not enough Justices at the court. This infringes upon the people’s right to timely redress. It is sad that an issue as important as justice delivery has now become a matter for political power sharing.
The current debate on judicial reform has highlighted the need for an overall restructuring of the judiciary. Once federal states are carved out, there needs to be a Judicial Council at the pradesh (state) level. Similarly, there is a need for state district courts, state appeals courts and a state Supreme Court. The structures of these judicial bodies should be independent. The State Judicial Council should be free from any outside influence to appoint judges or recruit employees for the state judiciary. The State Judicial Council should also remain free from the central government’s influence as far as appointment of state judges is concerned.
As the debate on judicial reform rages, an Alternative Dispute Resolution Committee could be one way to tackle the problem Nepal’s judiciary is facing. In the states, particularly in the Tarai, special courts can be established to address the issues of women and children, including that of domestic violence and land cases. The same kind of reform would be required at federal level too.
As far as the review powers of the federal Supreme Court and High Court are concerned, the High Courts should have the authority to end civil cases, except in constitutional cases, because many people from far-flung areas have to wait for years to get justice.
Binita Thakur, a schoolteacher, is an example here. She has been fighting for her salary for the last two years but the date of her final hearing always gets pushed further. Similarly, Arjun Sah, who filed a case at the Supreme Court seeking Nepali citizenship on the basis of his mother’s Nepali nationality, has been going through an agonising wait.
There are thousands of such cases but unfortunately, there is no debate at the PHSC on delivering timely justice to the people. Thus, faulty public hearings only undermine the credibility of the judiciary. What is required are actual hearings, not ritualistic ones, to enhance public faith in democratic institutions.
Jha is a lawyer practicing at the Supreme Court
Published: 03-06-2014 08:40