by Govinda Sharma “Bandi”
The Drafting Committee of the Constituent Assembly has finally submitted the draft constitution to the Constituent Assembly (CA). The four major political parties, who carried out the 16-point agreement, have also agreed to adopt a fast-track constitution-drafting process to promulgate the new constitution within a month or so. The fast-track process risks denying the people’s right to participate in the constitution-making process by substantially reducing the time for public discussion of the document. However, this article is not about examining the issues surrounding the drafting process. Rather, it intends to look into the relationship between the different branches of the government, the ongoing debate on the independence of the judiciary and the proposed draft.
Importance of independence
An independent, impartial, honest and competent judiciary is key to upholding the rule of law and democracy. So the 1990 Constitution, for the first time, recognized the principle of separation of powers and empowered the apex court with the power of judicial review over other branches of the government. This was a great achievement in the development of the constitutional law in Nepal.
However, the lack of necessary laws, policies and guidelines with regard to judicial appointment, the capacity of judges, adequate resources to the judiciary and clearly defined criteria for suspension and removal of judges has continued to raise questions about judicial independence. Though the judiciary has played an incredible role in the protection of human rights and development of civil rights jurisprudence in Nepal, this decades-long omission has resulted in a feudal, inaccessible, ineffective, corrupt and, in some occasions, politically influenced judiciary.
Often, the most qualified and deserving people have been overlooked for judicial posts, while those with strong connections with the top leaders have been given consideration. The failure of the Judicial Council to appoint judges to the Supreme Court consistently and in time has not only contributed to a huge backlog of cases, but also to a deep sense of insecurity among judges who have served for years at the Court. This has raised serious questions regarding our ‘independent’ judiciary.
For the new committee
Judicial accountability is an integral part of an independent judiciary and the rule of law. The principle behind judicial accountability is to ensure that no one is above the law and that judges are just as accountable for their actions as ordinary citizens. Therefore, the new draft constitution should also consider firmly establishing the notion of judicial accountability and independence while defining the role of the judiciary.
Both the previous constitutions have some provisions to hold judges accountable. The establishment of an independent Judicial Council as an oversight mechanism for lower court judges and impeachment procedures for Supreme Court judges were thought to be enough to ensure judicial accountability. But these mechanisms have never been effectively used. Due to the lack of procedural arrangements within Parliament, proposals forwarded by the Judicial Council have never been considered. Possibly, for this reason, the draft constitution proposes a parliamentary committee that would be primarily responsible for initiating impeachment proceedings against judges and other members of the constitutional bodies.
These proposed procedures and mechanisms have been heavily criticized by both the Supreme Court and the Nepal Bar Association, stating that they undermine the principles of judicial independence and separation of powers. On the other hand, members of the Drafting Committee argue that the current Judicial Council is ineffective and lacks capacity to take any action against judges as it is overwhelmingly dominated by members of the judiciary themselves. Both arguments are valid to an extent, but experience has proven that the current arrangement has completely failed to serve its purpose. What is clear is that the new constitution must address the issue of judicial accountability in a sustainable manner.
The Judicial Council largely remains ineffective for various reasons. First, it does not have a binding force to hold Supreme Court judges accountable. Second, it significantly lacks capacity. Third, it has been highly politicized through the non-transparent and non-public appointment process of its members. Therefore, the creation of an alternative body or, at the very least, a restructuring of the existing Council is desirable. At the same time, such an initiative should comply with standards and practices that do not undermine the independence of the judiciary.
Problematic proposal
The current constitutional proposal is problematic because the draft gives power to the parliamentary committee to investigate into a complaint. Allowing the committee to carry out an investigation would undermine the principle of separation of powers, rule of law and independence of the judiciary. Secondly, in order to safeguard judicial independence, there has to be proper procedures for the removal of judges solely on grounds of incapacity or misbehavior, which clearly renders them unfit to discharge their duty and not on any other lesser grounds. The current proposal extends the grounds upon which judges can be removed without clearly defining the meaning of those grounds (something that can lend itself to misuse). The controversy surrounding the impeachment of the Sri Lankan Chief Justice by the Rajapakse Government is a prime example of the misuse of similar provisions.
Article 283 of the draft constitution adopts the existing parliamentary confirmation hearing procedure as in the Interim Constitution. The current mechanism has already proven to be ineffective and politically motivated and has not contributed to making judges more accountable. Some people argue that this provision increased politicians’ access to judges, thereby affecting or limiting their judicial functions. Hence, continuing with this system without reforming the procedure would not contribute much towards judicial accountability or independence.
Now, the question is: what mechanisms and procedures are to be put in place so that judges could be held accountable? One proposal brought before the drafting committee was the process of reappointment of judges. This could be worth considering. This alone, of course, would again not be able to solve the issues of accountability. But it could still be useful to scrutinize the current capacity of judges and also to make the judiciary more inclusive. Another option could be to reform the current Judicial Council arrangement, particularly the selection of the members of the Council as well as the extension of the Council’s mandate to the Supreme Court. Especially when it comes to impeachment, the Judicial Council and not Parliament should be given the power to decide whether or not to remove or discipline a judge.
Bandi is an expert in international and constitutional law.
