Dr Gyan Basnet
Nepal News
July 10, 2013
An independent and impartial judiciary is an absolute essential for any democracy. Individual judges and the judiciary as a whole must be impartial and independent of all external pressures so that both those who appear before them and the wider public can have confidence that cases will be decided fairly and in accordance with the law. When exercising their judicial function judges must be free from improper influence that can come from a number of sources. It can arise from improper pressure by the executive or the legislature, by individual litigants, by pressure groups, by the media, by other judges (especially more senior ones), even by self-interest.
Today the judiciary in Nepal has become highly politicised. The institution has never before been so controversial, both politically and socially, in its history of over sixty years. A few weeks ago, the Judicial Council appointed judges for both appellate and district courts across the country. The Council has since been heavily criticized for making recommendations for judges´ appointments based not on competence but on political ‘len-den’, favouritism and nepotism. If that is true, the public has every right to raise questions. Is such an unholy, unconstitutional and immoral practice not going to jeopardise the justice system in our country? Where is the fairness of such justice? How can judges, appointed on the basis of political ‘bhagbanda’ and influenced by ideology and belief, dispense fair justice in our country? Whose interest are they going to serve throughout their tenure? Are they not subject to the law in the same way as any other citizen? The answer must be ‘no’ today.
Judges’ appointments in Nepal have always been controversial. There has been a lack of transparency, and the appointments have often been based on personal preference and political connection. The time has arrived to think seriously about the following questions. What are people’s expectations? Why are there no rules or, if there are, why does no one want to follow them? Where are the professional ethics of all concerned? Is it not time to undertake a critical assessment of the role of all judges in a democratic society, their system of appointment and their moral conduct in post? Judicial Autonomy
Judicial independence demands that judges are free to exercise their judicial powers without interference from the litigants, from the state, from the media and from powerful individuals or entities, such as large companies. This is vitally important because judges often have to decide matters between citizen and state and between citizens and powerful entities. The Bangalore Principles of Judicial Conduct state: ‘Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.’
Judicial independence, therefore, means that judges must be free from any undue influence that could prevent them from adjudicating legal disputes on the basis of their legal merits. As Lord Phillips argued: ‘The rule of law is the bedrock of a democratic society. It is the only basis upon which individuals, private corporations, public bodies and the executive can order their lives and activities. If the rule of law is to be upheld, it is essential that there should be an independent judiciary.’ Jack Beatson further noted that the primary duty of any judge is to uphold the rule of law and that a precondition for his ability to do that is his independence as a judge. The vital importance of such independence stems from the judiciary’s core responsibility for providing a fair and impartial resolution of any dispute between one citizen and another or between a citizen and the state or state institution under the prevailing rules of statute and case law.
Under the Bangalore Principles on Judicial Conduct, judges must be free, and be seen to be free, from inappropriate connections with the executive and legislative branches of government. The Beijing Statement of Principles on the Independence of the Judiciary stresses the importance of such independence in any free society that observes the rule of law. Judges must uphold the integrity and independence of the judiciary by avoiding any impropriety or appearance of any impropriety in all their activities.
It is crystal clear, therefore, that judicial independence is essential for establishing the rule of law and for the effective protection of fundamental human rights and freedoms of the people. It is equally essential for promoting the democratic culture of a law-abiding society and for developing a rights-based society where mutual understanding and respect are paramount.
Crumbling Justice System
An unbiased judicial system must assure citizens of the government’s intention to minimize political influence over the judiciary. Instead of being accountable to a political party or ideology, the judiciary is accountable only to the people in its interpretation of the constitution and of the laws of the land. However, our whole country is shocked and concerned by media reports that newly appointed judges met up with party leaders at the Balkhu Darbaar in order to receive their blessing. What does this say about the integrity, professional ethics and morality of such judges? Should the public not question their every decision? What kind of justice are they likely to dispense?
If reports in the media are true that many of the newly inducted judges met the CPN-UML leaders who had proposed their names, it is a serious indication that our system of justice is fast crumbling. It suggests that our judiciary has become the bhartikendra of the political parties, and it suggests that corruption is deep-rooted within our institutions. It suggests, too, the death of constitutionalism and the demise of all judicial values. It means that our civil society, our lawyers association, our media and our so-called politicians have failed to remove the existing deficit in our justice system. The reasoning is that as the political transition has dragged on for so long, the political parties have been blinded by their sheer greed for power. Our justice system has become but a pawn on the political chessboard and the judiciary but a tool to serve the politicians’ petty short-sighted interests.
It is vital that judges are seen to be both independent and impartial. Justice must not only be done but must be seen to be done. The current practice of appointing judges clearly demonstrates that political bhagbanda has developed as a cancer not only within our judiciary but in all sectors both private and public. How can judges be impartial if their appointment is reliant on political bhagbanda and they are near and dear to the political parties? How can they defend the supremacy of the constitution and the dignity of an independent judiciary? Does the competence of justice and the courts not depend upon public trust? Instances of unnecessary delay in giving judgment and of open bribery are already embarrassing the judiciary. How much longer can the public trust its judges?
Re-establishing Trust
The appointment of a judge at any level should be based on the individual’s intellectual capacity, his analytical skill, his ability to listen, his capacity to make sound decisions, his legal experience and areas of specialization, his capacity to handle possible problems and stress, and his knowledge and understanding of ethnicity and gender. It is time to start a wider debate around the following questions. What is the meaning of judicial independence, and what are its proper limits? How is judicial independence best protected, and by whom? Who is now accountable for the judiciary, and to whom? What is the role of lawyers, civil society and the media in maintaining the autonomy of the judiciary?
If the judiciary is to become a vibrant institution for the prompt and impartial delivery of justice, those who are appointed as judges must be seen to be fully competent for the role. The Judicial Council, which makes the appointments, must be headed and staffed by clean, qualified and non-political individuals. Cleaning up the mess within the Council itself is the first essential towards reforming our justice system. Secondly, neither Council nor court of law must be subjected to political lobbying and ‘bhagbanda’. Thirdly, both judges and lawyers must maintain their integrity and morality and comply with their professional ethics.
Our country faces constitutional upheaval, political crisis and even greater uncertainty. At this difficult time, the judiciary must be seen to stand firmly by its established principles, values and traditions. Democratic principles require that all government action is open to scrutiny by the courts. The courts of law must redefine their functions, attitudes and operating procedures to re-establish their credibility and to win back public confidence. From today on let the issue of judicial independence be urgently debated in academic, political and social circles throughout the land.
Dr. Gyan Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Columnist, Lecturer & Researcher in International Human Rights Law and a Human Rights and Constitutional Law Lawyer in the Supreme Court and Subordinate Court of Nepal.
