By Tika R Pradhan in The Kathmandu Post, June 07, 2023
After Prime Minister Pushpa Kamal Dahal said he will form a special high-level mechanism to investigate the assets of those in power since 1990, legal experts say a similar mechanism is necessary to bring reforms in the judiciary.
Some of them say the effort should be made by the chief justice himself as the government cannot do so, as that could be a breach of the notion of separation of power.
As Nepal’s judiciary has seen several upheavals in the recent past, legal experts and observers alike suggest that political parties and state take the initiative to restore the sanctity of one of the most important state organs.
“The judiciary has gone through various stages of anarchy due to repeated political interference,” said Gauri Bahadur Karki, former chair of the Special Court. “Now the government should take the initiative to form a powerful high-level mechanism through a full court to ensure necessary reforms. Implementation of its recommendations could instil hope among the people and restore trust in the judiciary.”
Claiming that ‘over-politicisation’ had crippled state organs, the new government led by Dahal formed with the support of the CPN-UML and the Rastriya Swatantra Party in its common minimum programme (CMP) unveiled in January had promised an all-powerful high-level commission to bring structural change and reforms in the judiciary to ensure quick and fair justice.
However, the CMP unveiled after the prime minister joined hands with the Nepali Congress omitted the issue of the high-level commission.
Some other legal experts, however, said that though such a commission or mechanism is essential to cleanse the judiciary, which is gradually losing the public trust, the government cannot form such a mechanism as that would be a breach of the constitution.
The statute’s Article 136 has clearly stated that the Chief Justice shall have the ultimate responsibility to make effective the administration of justice by the Supreme Court, subordinate courts, specialised courts or other judicial institutions.
“If the government formed the commission, that would breach the notion of separation of power,” said Balaram KC, a former justice of the Supreme Court. “I agree there is an urgent need for such a mechanism to address the existing problems, but that initiation can be taken by the Chief Justice alone.”
KC said the government can help the Chief Justice in this effort. Even if the government’s intent was noble, he added, the ruling leaders failed to recognise the constitutional provisions on the separation of power.
“The hangover of forming ‘royal commissions’ [during the time of the king’s rule] is still there, and therefore the government didn’t bother to read the constitution,” KC told the Post.
With rampant political manoeuvrings in the appointment of justices, there have been concerns that major decisions of national importance could be influenced. Therefore, observers are in favour of changing the existing system of appointing justices and setting up an independent body free of political influence for the purpose.
In 2017, a group of newly appointed judges visited the CPN-UML headquarters in Balkhu to “express their gratitude” to politicians.
The way justices were being appointed at the Supreme Court based on political parties’ recommendations had many wondering if the top court was losing its credentials, but the judiciary has managed to recover to some extent lately, says senior advocate Chandra Kanta Gyawali.
“We all know how Cholendra Shumsher Rana asked for his share in the Cabinet,” said Karki, former chair of the Special Court. “What can we expect from such a judiciary?”
Karki said political leaders are often afraid of reforming the judiciary fearing that could go against them.
He said a small panel led by either the incumbent justice or former justice of the Supreme Court can be formed through the full bench.
Some senior advocates have also pointed out the need for such a mechanism to be formed by the full court, but that is yet to materialise.
“The acting chief justice has not even implemented his own report. What more can we expect?” said senior advocate Gyawali. “The full court can decide to form a commission and ask the government for the necessary budget.”
As per the recommendations of acting Chief Justice Hari Krishna Karki-led panel’s report, the Supreme Court has adopted a lottery system for case management, but has failed to introduce an automated system despite Karki himself being elevated to the top of the judiciary.
https://kathmandupost.com/national/2023/06/07/experts-call-for-a-special-mechanism-for-judicial-reform
