The Parliamentary Hearing Special Committee (PHSC) has endorsed the eight nominees for judges to the Supreme Court on 27 May 2014. Six judges, namely Gopal Parajuli, Deepak Raj Joshi, Govinda Upadhyay, Devendra Gopal Shrestha, Cholendra Shumsher Rana, and Jagdish Sharma Poudel, have been elected through voting. Two others, Om Prakash Mishra and Baidya Nath Upadhyay, recommended by the Judicial Council, have also been approved unanimously by the PHSC.
The PHSC was formed to conduct an inquiry into the 22 complaints filed against the eight nominees. Old allegations of corruption, sexual harassment, polygamy, and deviation from justice involving the nominees resurfaced, creating controversy. Kantipur daily and Setopati digital paper ran detailed stories about the dubious track records of these newly appointed judges.
During the course of hearing, tension increased between the PHSC and the Judicial Council after the latter refused to appear before the committee to explain the nomination process. This posturing raised the specter of a turf war between the legislature and the judiciary. But, the issue was closed following a Supreme Court order. The order stated that the Judicial Council did not need to appear before the committee; the constitution does not require it.
No matter what the managed resolution of the turf battle, the fact remains that the nominated judges and the Chief Justice have controversial images. How can justice be delivered when the public believes the judiciary to be in neck deep corruption and controversy? Nepalese institutions and the Supreme Court have been affected by a lack of resources, a fact the AHRC has been frequently raising. It is the responsibility of the state to provide adequate resources so that institutions and officials do not have to resort to corruption. The judiciary should follow the prescribed code of conduct. Having a code of conduct is not enough. If there is no accountability, then it should be ensured that there is a forum to raise such issues. A mechanism is required to check whether state resources are properly used. Even a single person misusing the Supreme Court’s resources is a serious breach.
For instance, the Supreme Court Chief Justice Damodar Prasad Sharma is found to have been using 6 government vehicles for his personal use, which is against the existing provision of the Supreme Court. The Chief Justice is entitled to one vehicle and 250 litres of petrol a month. This is a blatant misuse of government resources, a corrupt mentality.
Chief Justice Sharma referred to as ‘Baba’ has been building a 24-room mansion in Devghat (a sacred place for Hindus) and has appointed 3 people on government salaries in order to manage it. Interestingly, these individuals have been receiving their salaries from the District Court Chitwan and the District Court Hetauda, one of them for the past 14 months and counting.
The judiciary in Nepal is not only corrupt. It has also become highly politicized. The Judicial Council has sparked controversy, and in a sense, exposed the judiciary by recommending judges with tainted images. The council has been criticized inside and outside Nepal. It is clear that these appointments were done to accommodate political favoritism and nepotism. A continuation of such practice will jeopardize the justice system in Nepal and prevent the establishment of the rule of law. In order for the judiciary to be independent, it requires independent judges. But the judges appear to want to take the blessings of politicians after their appointments. This is another clear indication that the system is corrupt and flawed. How can impartial justice be expected from these political appointees at the Supreme Court?
Nepal should clean up this mess.
Judicial independence is essential for establishing the rule of law and for the effective protection of fundamental human rights and securing the freedoms of the people. The Judicial Council should recommend and make appointments – qualified and non-political appointments – only on the basis of intellectual capacity, analytical skills, and ability to make fair decisions.
The AHRC is concerned that the Supreme Court has initiated steps to take action against Kantipur daily and Setopati digital paper for raising questions about the honesty and integrity of recently appointed Supreme Court judges, including Chief Justice Damodar Prasad Sharma. In the Supreme Court’s first meeting after the appointments, a decision was made to take action against the journalists and media houses that have, according to them, attacked the judiciary. As per a report, the newly appointed justice Gopal Parajuli made the proposal, which quickly received a vote of support from the Chief Justice.
The AHRC calls upon the Supreme Court to respect the freedom of speech and the right to information of the general public. The court should refrain from taking any vindictive action against Setopati digital paper and Kantipur daily. Freedom of the press is essential to bring light to otherwise non-transparent institutions, especially in matters related to corruption. In bringing the truth to the public, such media houses are in fact creating possibilities for a stronger judiciary that can serve the need of the people, not just work for selected politicians and moneybags.
