Well, the judicial
appointment is a farce in Nepal. That we have seen recently. Despite
constitutional mandate to clear name of the justices of Supreme Court of Nepal
before their appointment, what we saw recently was the mockery of appointment.
This was due to mockery of parliamentary discussion on the issue. (Read More Here how the appointment went ahead in May, 2014 in Nepal:
What followed
thereafter was another tussle between lawmakers and journalists after the bill
to curb defamation of courts and justices were introduced in Nepalese
Parliament (Bill to punish the contempt of court). Journalists and the members of Civil Society made a hue and cry and
rightly so. The allegations against the Law Minister of Nepal were that the
bill was introduced as a direct effect of criticisms harped by Nepali
journalists in the wake of recent judicial postings.
(Read More Here: http://www.ekantipur.com/2014/07/10/national/contempt-bill-draws-criticism/391989.html )
I do not think any sane
writers could have written anything good and read worthy on the process of
judicial appointments practiced by “democratic” government of Nepal. The topic
is certainly not meritorious. But, I am raising this topic after a gap in the
wake of similar controversy in India where former Supreme Court Justice Katju
alleged that former three Supreme Court Chief justices of India came under a
government pressure to appoint a justice at Madras High Court and to extend his
tenure despite Intelligence Bureau (IB) had found adverse records against him.
Justice Katju spoke
about the matter, albeit after ten long years. (Read More Here:
As compared to Nepalese
Supreme Court, Indian judiciary has long history and tradition in appointing
Judges and the duty is entrusted to a Collegium – which comprises mostly the
senior most justices of SC. Once the Collegium refers the name, it will send
the appointees' name to the Law Ministry which would then, advice the President
of India to appoint the Justices.
Of Course, the names referred by the SC
Collegium is not binding to the Government though it may not out-rightly refuse
to appoint the person referred by the Collegium. Instead, it may never forward
the name of the person referred by the Collegium to the President of India and
the person effectively, may not get appointed as SC Justice. This is exactly
what recently happened in the case of the Senior Advocate Gopal Subrahmanium. (Read More Here:
As compared to Indian
model of appointment of SC Justices, Nepal is supposed to have a better model.
Nepal has a National Judicial Council (JC) which has members from judiciary, the bar and from the government (Law Minister).
However, it is one thing to have a robust
system on a paper and entirely different and defunct mechanism when it comes to
practice. In the past, there were many occasions when SC Justices could not be
appointed as Judicial Council itself did not have required quorum due to
various defunct constitutional positions.
After Nepal’s Interim
Constitution was promulgated in 2007 AD after the historic change of the
country from Kingdom to Republican set up, a new euphoria had caught up the
nation. Amidst the wave of change, some new provisions were inserted in the
Interim Constitution where it was provided that the Justices should be like
“Caesar's Wife" and must be above suspicion. Hence, it provided that a new test should be passed by them – that is clearance
from the sovereign Parliament of Nepal, a clearance from Parliamentary Hearing Committee.
However, our practices
show that good intentions alone cannot create a controversy free judiciary.
Mere words in our Constitution can not ensure that clean Justices would
be occupying the seat for handing down the justices. The intention and spirit
of our Constitution needs to get backing from the deeds of our parliamentarians
and as usual, as happened many times in the past, our representatives have failed and have made us feel
that we have failed.
The problem with
appointment of clean Justices at the highest court is hampered by nexus between
politicians and probable appointees. We need to admit that political leanings
and backings are still decisive factor in promoting any civil servants in Nepal
including the Justices. The problem stems from the desire of politicians to get
closer with the Judiciary and also due to the inability of our judiciary to
distance itself from any political fears and favours.
In India, the National
Judicial Accountability Bill is being discussed these days with a hope that
such instruments can curb the prevailing problems. In Nepal too, we need to
start debating on such instruments which hopefully remove little more clouds of
doubts in Judicial appoints before we reach our dreamland of corrupt free
Judiciary, corruption free society.
Till then, lets hope we will not face a situation where we have to go to courts!
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