Judicial Reform for an Independent & Effective Judiciary

- Dr. Hari Bansh Tripathi

Background Nepal has experimented till date with six successive Constitutions of different hue and colors,besides laboriously struggling all these years to design the seventh one. Although each of theseConstitutions claimed themselves to be "the fundamental law of the land", all of them, exceptthe Constitutions of 1990 and 2007, were virtually bereft of the universally recognizedconstitutional values like the rule of law, democracy, fundamental rights and an independent andeffective system of justice. As a corollary to all those constitutional changes, Judiciary in Nepalcan be described as the institution which has been always hard hit.

All this has resulted in recurrent experiments with the form, structure, scope, powers andprocesses of the judiciary. It was the Interim Government of Nepal Act, 1951 which tried to takethe first step towards ensuring separation of the Executive from the Judiciary and alsoconsolidation of an independent Judiciary by investing the Pradhan Nyayalaya with effectivepowers and jurisdiction. The Supreme Court of Nepal, under the direct rule of the King, couldnot be consistent in its role as the guarantor and protector of the fundamental rights of thepeople and as the guardian of the Constitution. However, it shall be unfair is not to acknowledgethat due to personal courage, commitment, conviction and competence of individual Judges theapex Judiciary now and then could leave its imprints in a few cases by displaying judicialactivism. However, the 1990 Constitution of the Kingdom of Nepal for the first time internalizedsome basic values of constitutionalism, especially, including the rule of law, human rights,democracy and an independent and competent system of justice. The 1990 Constitution tried tocreate a powerful and independent Judiciary for the first time in the history of the Nepal, andentrusted the Supreme Court with the role of ultimate interpreter of the Constitution andprotector of fundamental rights. However, due to turbulent insurgency propelled by the warringrebels the 1990 Constitution could not survive for long and was subsequently repealed by theInterim Constitution of Nepal, 2063 (2007 A.D.). The Interim Constitution of Nepal, 2007 hasdeclared Nepal as a "sovereign, secular, inclusive and federal, democratic republic."1 TheInterim Constitution has also tried to address the long ignored issues relating to the protection,promotion and advancement of the marginalized communities, women, dalits, 'janjatis',Madhesis, the aged and the disabled.2

However, what is more important today is - How the new democratic Constitution currently beingdrafted by the Constituent Assembly addresses the predominant issues like restructuring of theState and a system of governance based on federalism, thereby eradicating various types ofdiscriminations, and introducing values like inclusion, participation and mainstreaming of themarginalized communities in the political and other organs of the State. Needless to say, as inevery democratic dispensation, an independent, competent and effective Judiciary shall berequired in the proposed federal Republic of Nepal to act as the arbiter and interpreter of thenew Constitution. However, it is a matter of grave concern that even after the creation of thesecond Constituent Assembly, the peace process and the drafting of the new Constitution havenot moved at good pace. And, unfortunately, recently it has become trapped in the process of

Dr.Tripathi is an ex-Judge of Court of Appeal, currently serving as a Consultant at National Judicial Academy- Nepal.1 The Interim Constitution of the Kingdom of Nepal, 2007, Art. 4(1). 2 Ibid, Art. 13(3).

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political bargaining. The present Constituent Assembly did not have to start in a vacuum as ithad got the benefit of extensive documentations of the deliberated outcomes of the precedingConstituent Assembly, the constitutional values and norms embodied in the ComprehensivePeace Agreement (2006) as well as in the Interim Constitution of Nepal, 2007. The values likedemocracy, federalism, secularism, identity, inclusion, human rights, rule of law and anindependent Judiciary incorporated in the above mentioned historic documents underscore thebasic norms and roadmap for writing the new Constitution of federal Republic of Nepal.

Basic Values of Judiciary Every time with every constitutional change in Nepal calculated attempts have been maderepeatedly to redefine and reorient the concept, structure, scope, powers and jurisdiction of theJudiciary. However, all through those constitutional experiments the Nepali Judiciary, evenduring the direct rule of the King, had tried to profess at least some sort of adherence to theconcept of independence and impartiality of the Judiciary. Expectations for independence,competence and impartiality of the Judiciary have been always one of the major concerns of theNepali intelligentsia. And the country has never compromised on the issue of these core judicialvalues which are treated as the hall mark of any independent and efficient system of justice.

As Nepal is in the process of designing a new Constitution, it shall be relevant to have a briefoverview of the core values of the Judiciary. The Judiciary plays a vital role in a democraticsociety. A Judiciary bereft of the basic values of independence, accountability, effectiveness,efficiency and impartiality, can neither defend the Constitution nor protect the rights of thepeople. Every Judiciary in a democratic society should be guided by the following values, eachof which applies to the individual Judges and to the Judiciary as a whole.

Independence Independence of Judiciary basically means freedom of the Judiciary from direction, control orinterference in the operation or exercise of judicial powers by the legislative or executive arms ofthe government. Judicial independence empowers the judge to decide cases fairly andimpartially, having protection against various pressures - political, executive, legislative, financialor public. A truly independent Judiciary has mainly three characteristics. First, it is impartial.Second, judicial decision, once rendered, is respected. Third, it is free from any kind ofinterference, external or internal, whatsoever.

Judicial independence is also required to operate at two levels: functional or operational leveland institutional level. Functional independence means the freedom of the individual Judges todecide the issues before them on the basis of fact and law, without any restriction, improperinfluence, threats or interference. Similarly, structural independence of the Judiciary chieflydenotes the autonomy of the Judiciary as an institution which is free from other organs of theState in discharging its judicial functions. In the early days of the concept of judicialindependence, only functional independence was regarded as the sufficient prerequisite. But inthe modern times both functional and institutional independence are considered equallyimportant prerequisites to ensure independence of the Judiciary. Because institutionalindependence leads to decisional independence of the judge both these values need to bemaintained at all times, irrespective of whether it is normal time or transitional time. IndependentJudiciary being the backbone of a democratic society, American ex-chief Justice Rehnquist hasrightly described it as one of the "Crown jewels"3 of the nation's system of government.

3 Mistretta V. United States, 488 U.S. 361, 407 (1989)

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An independent Judiciary is supposed to require the following basic minimums:4 1) Adequate constitutional and legal provisions to insulate Judges from illegal pressures

and influences from non-judicial authorities, 2) Adequate physical infrastructure for discharge of judicial functions, 3) Well-educated and well trained Judges , 4) Well–trained and competent court staff, 5) Secured and adequate resources for court administration, and 6) Proper mechanism for disciplining Judges and ensuring their accountability.

Impartiality Judicial impartiality is generally related with the personal conduct and character of the presidingjudge. In fact, judicial impartiality is not simply another aspect of judicial independence rather itis an extended manifestation of independence. Judges are supposed not to have anypreoccupations or prejudices or biases regarding the issues they are deciding upon nor shouldthey favor either of the parties to the dispute.5 Judicial impartiality requires the Judges to basetheir decisions exclusively on the appreciation of facts and evidences in accordance with thelaw. In the case of Arvo O. Kartunen, the Human Rights Committee explained that the nation ofimpartiality "implies that the Judges must not harbor preconceptions about the matter put beforethem, and that they must not act in ways that promote the interests of one of the parties."6

Effectiveness and EfficiencyThe dual concepts of effectiveness and efficiency are integrally correlated. Whereas efficiencydenotes professional competence of Judges in discharging their judicial functions following thefair procedure of hearing, effectiveness requires that the decisions so delivered must meet highstandards of professional competence and address meaningfully the issue of dispute. Needlessto say, effectiveness of the Judiciary depends also on judicial independence and efficiency andintegrity reflected in the decisions. The cases need to be processed not only efficiently ratheralso decided speedily and impartially. Effective justice also implies an ability to deliverjudgments of high quality within a reasonable period of time and at a reasonable cost for thejustice seekers. Court decisions are also required to untangle the knot of issues that createdisturbances in the social relationships. So the decisions delivered by Judges are not meant forserving only academic interest. Rather they are supposed to provide a peaceful instrument formaintaining harmonious relationship in all walks of the life of a nation. Judges are supposed tobe standard setters in the society, who are required to interpret and contribute to evolution of thelaw, wherever so needed. Only professionally qualified and competent Judges can perform thisenormous task.

Judicial AccountabilityAccountability and transparency are the most essential prerequisites of democracy. However,judicial accountability basically differs from the accountability of the Legislature or the Executiveor any other public institution. It is so because judicial accountability needs to be considered inthe context of independence and impartiality expected of the Judiciary.

4 Purna Man Shakya, "Judicial Independence Challenges, Initiatives and Recommendations" Annual Survey ofNepalese Laws, Vol.- IV, Nepal Bar Council, Kathmandu, P. 20 (2003) 5 Tek Narayan Kunwar, "Global Standards of Judicial Independence" NJA Law Journal, (2007), National JudicialAcademy, P. 78 6 Communication No. 387/1989, Arvo O. Kartunen Vs. Tinland (views adopted on 23 Oct., 1993) in UN doc. GAOR,A/48/40 (Vol. II,) P.120

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The difference between independence and accountability must be properly understood.Independence is concerned with freeing the Judiciary from prior control of its decisions whereasaccountability focuses on having mechanisms in place by which the Judiciary as anindependent body is required to explain its operations.7 Judges are accountable to the extent ofdeciding the cases expeditiously in public fairly and delivering their judgments explaining thereasons thereof. Except that their judgments shall be subject to judicial review as prescribed bylaw, the Judges and the courts are accountable neither to other branches of government nor tothe public at large. But of course, in a broader sense, they are supposed to be accountable tothe rule of law.

Global Standards of Judicial ValuesGlobal standards of the judicial values have been laid down in a number of international andregional human rights instruments and documents. These international instruments propound,define and delineate the contours of some universally recognized judicial values likeindependence, impartiality and competence of a system of justice and principles of fair trial.Those international instruments can be of singular values while debating the various issues incourse of designing the system of justice in the new Constitution of Nepal.

1. Universal Declaration of Human Rights (1948), Article 10:"Everyone is entitled in fall equality to a fair and public hearing by an independent andimpartial tribunal, in the determination of his rights and obligations and of any criminalcharge against him."

2. International Covenant on Civil and Political Rights (1966), Article 14:"In the determination of any criminal charge against him, or of his rights and

obligations in a suit at law, everyone shall be entitled to a fair and public hearing by acompetent, independent and impartial tribunal established by law."

3. UN Basic Principles on the Independence of the Judiciary (UNBP)(1985):It formulates basic principles regarding independence of the Judiciary,qualifications, selection and training of judicial officials, conditions of their serviceand tenure, professional secrecy and immunity, and disciplinary, suspension andremoval proceedings of Judges for their alleged incapacity or misconduct.

Article 1 of UNBP clearly s, "The independence of the Judiciary shall beguaranteed by the State and enshrined in the Constitution or the law of thecountry. It is the duty of all governments and other institutions to respect andobserve the independence of the Judiciary."

Similarly, there are also 'UN Basic Principles on the Role of Lawyers (1990)', and'UN Guidelines on the Role of Prosecutors (1990)' which complement the UNBasic Principles on the Independence of the Judiciary.

4. Tokyo Principles (1982)The Tokyo Principles endeavor to identify principles and conclusions on theindependence of the Judiciary in the LAWASIA region. Those principles chieflytalk of adopting such a method of appointment of Judges which ensures theappointment of persons having independence, capacity and integrity and also

7 Kalyan Shrestha, “Napali Judiciary: Achievements & Challenges," NJA Law Journal (2007), P.21.

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provides safeguards against appointments being influenced by inappropriatefactors – (Art. 10).

5. Beijing Principle (1995) The Beijing Principles, adopted at the 6th conference of Chief Justices of Asia and thePacific region, make a series of recommendations covering a wide range of issuesincluding judicial independence, judicial appointments, security of tenure, judicialresources and remuneration, court administration and the relationship of the Judiciarywith the Executive. The Beijing Principles marked a remarkable consensus among theChief Justices representing different nations in the region to reach agreements in theminimum standards required for securing judicial independence in their respectivecountries.

6. The Banglore Principles(2002)The Banglore Principles of Judicial Conduct, 2002 is a draft document preparedby Judges developing broad principles appropriate to an international code ofjudicial conduct. Those principles are designed to provide guidance to Judgesand a framework for regulating judicial conduct. The Banglore Principles haveidentified the following six values which are supposed to meet the globalstandards of judicial conduct: independence, impartiality, integrity, equality,competence and diligence.

Overview of Different Perspectives on Restructuring of the Future JudiciaryIn Nepal, Constitutions have been tactically used time and again as an effective instrument ofcrisis management for reduction or diffusion of socio-political tensions from time to time.However, let us hope the new Constitution will be created this time as a visionary documentbased on the principles of constitutionalism and owned and patronized even by the commonpeople on the street. The 10 year long armed conflict in Nepal came to an end with the signingof the Comprehensive Peace Accord concluded between the Government of Nepal andCommunist Party of Nepal (Maoist) on November 21, 2006. The Comprehensive Peace Accordreaffirmed its commitment to a competitive multi-party democratic system and civil libertiesthrough inclusive, democratic and progressive restructuring of the State. The violent Madhesmovement led to the fourth amendment to the Interim Constitution of Nepal, declaring Nepal as"a federal, democratic, republican State."8 Drafting of the Constitution by the ConstituentAssembly (CA) by its very nature also signifies an extensive political exercise in socio-politicaldisputes resolution. Apart from addressing multiple issues like identify, inclusiveness,participation in the national mainstream, autonomy and self-determination, the ConstituentAssembly is also debating how to design an independent, impartial and accountable Judiciaryin the new Constitution.

The Concept Paper published by the CA Judiciary Committee has rightly underscored the needof reviewing the existing structure and scope of the Judiciary in the proposed federal structure inthe backdrop of the constitutional commitment of the Interim Constitution of Nepal, 2007 torestructure the Judiciary along the lines of a proportionate, inclusive, democratic, republicansystem of governance. And such a system of governance has been envisaged with a view toending class, caste and gender based discriminations and ensuring the common people’saccess to justice.

8 The Interim Constitution of Nepal, 2007

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1. Concept Paper of the CA Judiciary Committee and the Ensuing Debates The Judiciary Committee of the Constituent Assembly claims to have thoroughly analyzed thestrengths and weaknesses of the present Judiciary in the Preface to the Concept Paper whichseems to have been guided by three objectives: a) to ensure independence, transparency andaccountability of the Judiciary, b) to restructure and democratize the Judiciary on the basis ofproportionality and inclusiveness, and c) to provide real justice by ensuring people's easyaccess to justice.

The Concept Paper of the Judiciary Committee seems to be obviously impacted by generaldissatisfaction with the existing Judiciary, especially, in regard to alleged lack of inclusion andtransparency on the process of appointment of Judges, lack of access to justice formarginalized and excluded communities and lack of Judges' accountability for their judicialfunctions.

The members of the Judiciary Committee could not arrive at consensus over the issues relatingto structure, hierarchical order and jurisdiction of the Judiciary. It is highly regrettable that themembers of JS Committee, instead of focusing on some common grounds in the best interest ofthe common people, preferred to remain committed to their respective party lines andideologies. The CA members belonging to Nepali Congress, UML and some other smallerparties advocated for a form of Judiciary that is autonomous, decentralized and independent.On the contrary, the CA members belonging to UCPN (Maoist) vehemently advocated for a formof Judiciary virtually under the control of the Legislature Parliament. Most of the crucial andcontroversial issues were finally decided through voting resulting in acceptance of severalagendas put forward by the UCPN (Maoist). Let us have a look at some of the majorrecommendations made by the Concept Paper submitted by the Judiciary Committee to theSpeaker of the Constituent Assembly on September 9, 2009.

Structure of the Judiciary The JS Committee categorically declared that a dual system of courts is not suitable for Nepal.So it has proposed an integrated structure of the Judiciary led by the Supreme Court withDistrict/Local Courts at the bottom and the Provincial High Courts as the intermediate courts ofappeal –(Art. 2). Besides, JS Concept Paper proposes that courts may be set up atvillage/municipality/unit levels or alternative dispute settlement mechanism can be created forresolving local disputes – (Art 2(3).

Powers & Jurisdiction of the Courts As regards the jurisdiction of the federal Supreme Court, the JS Concept Paper has taken aclue from the Interim Constitution of Nepal, 2007 and prescribed its jurisdiction virtually on thepattern of Art. 107 devoted to jurisdiction of the Supreme Court. It states that the federalSupreme Court will have extra–ordinary jurisdiction over the following to issue necessary andappropriate orders including appropriate writs for imparting full justice and providing appropriateremedy for: a) the enforcement of fundamental rights conferred by the Constitution, b) theenforcement of any other legal right for which no other effective remedy has been provided, andc) for settlement of any constitutional or legal question involved in any dispute of public interestor concern – (Art. 10(1)).

The federal Supreme Court has been also granted original jurisdiction over: a) conflicts betweenprovincial governance and federal governance, b) conflicts between two or more provinces, c)conflicts between federal constitutional bodies, and d) conflicts relating to national security,treasury and foreign relations – (Art. 10(2)).

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Besides its extra–ordinary jurisdiction and original jurisdiction, the federal Supreme Court willalso have appellate jurisdiction over: (a) the decisions made by a provincial High Courtexercising its original jurisdiction, (b) any matter of public importance involving question ofinterpretation of the Constitution or law, and c) any case recommended by a provincial HighCourt coupled with its opinion describing it as fit for being heard by the federal Supreme Court(Art. 10(3)). Moreover, the federal Supreme Court shall also have the jurisdiction to review itsown decisions and final orders – (Art. 10(4)) and to hear appeals and to examine decisionsreferred for confirmation as provided by the law – (Art. 10 (5)).

Jurisdiction of Provincial High Courts The JS Concept Paper has proposed to grant extra–ordinary jurisdiction, appellate jurisdictionand original jurisdiction to provincial High Courts. The Provincial High Courts shall exerciseextra–ordinary jurisdiction (a) for the enforcement of the fundamental rights conferred by theConstitution, (b) for the enforcement of any other legal rights for which no other remedy hasseen provided or for which the remedy even through provided appears to be inadequate orineffective, and (c) for the settlement of any constitutional or legal question involved in anydispute of public interest or concern. In such cases the provincial High Courts may issuenecessary and appropriate orders including various writs in the name of the provincialgovernment or any other authority within its jurisdiction for enforcement of such rights orsettlement of the disputes with a view to imparting full justice and providing the appropriateremedy – (Art. 20(1)).

Under their appellate jurisdiction, the provincial High Courts shall also exercise jurisdiction tohear original and appellate cases, to examine cases referred for confirmation, to review casesand hear petitions as provided by the law (Art. 20(2)) and to review their own judgments or finalorders subject to the Constitution and the law – (Art. 20(3)).

Jurisdiction of District/Local Courts The JS Concept Paper states that the District/Local Courts shall have original jurisdiction,except otherwise provided by the prevailing laws, to try and decide all cases within theirjurisdiction, to entertain writs of habeas corpus, to hear appeals upon the decisions made bydistrict level quasi–judicial bodies, and village/municipality/unit level courts as constituted byprovincial laws – (Art. 28(1)). Art. 28(2) of the JS Concept Paper also s that other jurisdiction ofthe District/Local Courts shall be further elaborated by the provincial law.

Selection and Appointment of Judges Although the JS Concept Paper theoretically talks about the need and indispensability ofensuring judicial independence, it seems to have acted contrary to this precept by proposing tosubjugate the Judiciary to the Legislature. The Concept Paper envisaged the creation of aSpecial Judicial Committee of the Federal Legislature, and a Special Judicial Committee ofDistrict/Local House of Representatives on the basis of "proportional and inclusiverepresentation" with extensive powers which smacked of a veiled attempt by the Legislature toinfluence and control the functioning of the Judiciary at all levels.

The Special Judicial Committee of federal Legislature has been proposed to select and preparea list of prospective candidates, on the basis of the principle of inclusiveness and proportionalrepresentation, for the posts of the Chief Justice and other Judges of the federal Supreme Courtand to present that list to the federal Legislature for approval. And the Head of the State shallappoint the person approved by the Federal Legislature as the Chief Justice or a Judge – (Art.29 (2)(b)). The Special Judicial Committee in the Federal Legislature shall comprise of 11

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members chaired by the Deputy Speaker of the Federal Legislature. The Law and JusticeMinister will be an ex–officio member of the Committee, and the remaining nine members of theCommittee will be elected by the basis of proportional and inclusive representation – (Art.29(a)). Almost a similar model of Special Judicial Committee has been proposed for the purposeof the provincial High Court and District/Local Court levels – (Art. 29 (5)(8)).

Similarly, the JS Concept Paper provides for entrusting the task of appointing Chief Judge andother Judges of the Provincial High Courts to the Special Judicial Committee of the provincialLegislature as at the federal level -(Art. 29(6)(a)).

The JS Concept Paper recommends the same practice of the Special Judicial Committee of theDistrict/Local Legislature preparing a list of prospective Judges and sending the same to thelocal Legislature for approval before making appointment by the Head of District/LocalLegislature – (Art. 29(9)(a)).

Appointment Criteria for Judges The Concept Paper prescribed the following criteria for appointment of Chief Justice, ChiefJudges and Judges at the various hierarchical tiers of the Judiciary:

For the Federal Supreme CourtAny Nepali National who holds a Bachelor of Law degree and has served as Chief Judge orJudge of a Provincial High Court for at least 7 years or holds a Bachelor of Law degree and haspracticed as an Advocate or senior advocate for at least 15 years continuously or has worked inthe area of law for at least 15 years or has worked as a gazetted First Class Officer for at least12 years in the judicial service shall be deemed eligible for appointment as Chief Justice or asJudge at the Federal Supreme Court – (Art. 6 (3)).

For the Provincial High Court Any Nepali citizen who holds a Bachelor of Law degree and has worked as a District/LocalCourt Judge for at least 7 years or holds a Bachelor of Law degree and has practiced as anadvocate or Senior Advocate for at least 10 years continuously or has taught or researched inlaw or has worked in any other field of law or justice or has worked for at least 7 years as agazetted First Class Officer in the judicial service shall be deemed eligible for appointment asChief Judge or as judge at the provincial High Court – (Art. 16(3)).

For the District/Local Courts Any Nepali citizen who holds a Bachelor of Law degree and has worked as a gazetted SecondClass Officer for at least 3 years in the judicial service or holds a Bachelor of Law degree andhas practiced as an advocate for at least 8 years continuously or has taught or researched inlaw for at least 8 years or has worked in any other field of law or justice shall be deemedqualified for appointment as a District/Local Court Judge – (Art. 27 (2)).

It is encouraging to note that the JS Concept Paper has provided for appointment of the Judgesat all levels by adopting the principle of inclusiveness and proportional method – (Art 29 (3)).However, it s that the Chief Justice of the federal Supreme Court or the Chief Judge of theprovincial High Court should be recommended for appointment only if his or her tenure can beat least for two years– (Art 6 (2)). Such a requirement may be disputed as it will serve as a de-motivating factor for career Judges due to the rigid age related requirement.

Reappointment of Judges

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This JS Concept Paper provides that the position of the sitting Chief Justice and other Justicesof the Supreme Court will become, ipso facto, ineffective in case they are not reappointed withinthree months of the promulgation of the Constitution – (Art 32 (5)). Likewise, the position of theChief Judge and other Judges of the High Courts and District Courts will cease to be effective ifthey are not reappointed within three months of the promulgation of the Constitution – (Art 32(6)).

The provision about reappointment of Judges put forward by the JS Concept Paper receivedmixed reactions from the legal and judicial community as well as the intelligentsia. Theintelligentsia welcomed this provision as an effective modality of purging the Judiciary andgetting rid of Judges allegedly involved in rampant irregularities so that the restructuredJudiciary could be more accountable. On the other hand the legal and judicial communitytreated it as an attempt at creating a Judiciary which will play only as a second fiddle to theLegislature. Furthermore, such a provision shall encourage sitting Judges to seek favors ofpoliticians for reappointment, and needless to say, the Judges so reappointed in the newJudiciary will find it difficult to resist attempts at erosion of independence of the Judiciary.

Power of interpretation of the Constitution and the LawsThe JS Concept Paper states that the Special Judicial Committee of the Federal Legislatureshall have the power to interpret the Constitution and the federal laws inconsistent with theConstitution and any issue of political significance or having direct concern with the position andpowers of national importance –Art 29 (2) (a)).

On the other hand the Concept Paper of the Restructuring Committee states that theConstitutional court shall resolve Constitutional disputes as well as the inter State disputesunder its original jurisdiction, and such a decision shall be final- (Art.11(11)). Also, even theappeal upon the decisions made by the provincial High courts on constitutional issues shall alsofall under the jurisdiction of the Constitutional Court.

AccountabilityThe JS concepts paper has recommended several provisions to ensure judicial accountability ofJudges. The most significant of them is a motion for impeachment to be presented before thefederal Legislature against the Chief Justice or any other Justice of the federal Supreme Courton the ground of inability to perform his/her duty for reasons of incompetence, misconduct, lackof good faith, punishment awarded for moral turpitude or physical or mental illness. If such amotion is adopted by a two–thirds majority of members of the federal Legislature existing at thattime, he/she shall 'ipso facto' cease to hold office – (Art. 8 (2)). The Chief Justice or any Justicethus impeached shall be prosecuted as provided by the law if found guilty of breach of judicialdiscipline or dignity – (Art 8(4)).

Likewise, the Special Judicial Committee of the federal Legislature is empowered to recommendto the Head of the State to remove or dismiss from the post, if any complaint against the ChiefJustice or any other Justice is lodged on the ground of his/her inability to perform his/her dutyfor reasons of incompetence, misconduct or breach of Code of Conduct or if it is so establishedby the available information, action taken or conduct – (Art.29(2)(c)). However, if dismissed onthe charge of corruption, action shall be taken as decided by a Special Court constituted by theSpecial Judicial Committee of federal Legislature –Art. 29(2) (c), (d),(e)).

The JS Concept Paper has proposed similar type of mechanism for disciplining the Chief Judgeor Judges at the provincial High Court and district/local level courts - (Art. 18 (2) (3), Art. 26(6),Art. 29(6)(b), Art. 29 (a), (b), (d)).

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Points of Dissent on various IssuesThe erstwhile Constituent Assembly Justice System Committee broadly agreed on the issuesrelating to the independence of the Judiciary, integrated structure of the Judiciary, appointmentof Judges , ground of their dismissal, formation of a Judicial Council or Commission and scopeof work of the Supreme Court. However, there were several points of disagreement as wellwhich related to the issues like reappointment of Judges, qualification of the Chief Justice,mechanism for appointment of Judges of the Supreme Court, provincial High Courts and DistrictCourts, interpretation of the Constitution by the Supreme Court or a Committee of theLegislature.

(i) Reappointment of Judges 19 members of the CA JS Committee belonging to Nepali Congress, United Marxist–Leninist (UML) party and some other smaller parties expressed their dissent on thedisputed provision relating to reappointment of Judges within three months of thepromulgation of the Constitution – (Art. 32(5),(6)). The dissenting members arguedthat the issue of reappointment of Judges was equally correlated to the officials ofother constitutional bodies and, therefore, a decision should be made collectivelyabout all the officials of the constitutional bodies. They also opined that the saidissue belonged to the jurisdiction of the Constitutional Committee and did not fallunder the jurisdiction of the JS committee.

ii) Qualification of the Chief JusticeThose 19 members of the CA JS Committee strongly dissented about the provisionregarding opening the door for appointment of the Chief Justice also for qualifiedpersons from outside the Judiciary. Their dissent was based mainly on the followingthree grounds:A) As there is only one position of the Chief Justice, it is fallacious to argue that

such a provision can facilitate in appointment to the post on inclusive orproportionate basis.

B) Appointing the Chief Justice directly from outside the Judiciary may expose theentire Judiciary to the danger of unwarranted consequences in case theappointment is influenced by political considerations.

C) Such a provision shall be detrimental to bringing about stability in the Judiciary. Itmay create a situation of frequent changes in the judicial leadership on accountof fluid political situation caused by every political change. Also, because theChief Justice will be entrusted with the dual responsibility of judicial leadership aswell as judicial administrations the provision about appointing a judge of theSupreme Court who has already imbibed the judicial culture will be moreappropriate.

Appointment Mechanism Needed for the Appointment of Judges of High Courts The same 19 members of JS Committee expressed their dissent on the issue whether Judgesof the Courts should be appointed by a central mechanism or a State mechanism. They arguedfor appointing Judges of all the High Courts through a singular central mechanism created forthis purpose in order to bring uniformity and consistency in the interpretations of law, decisionsand proceedings of different High Courts. They further argued that the Judges appointed by theState mechanism may face the problem of acceptance or recognition, if transferred to otherHigh Courts.

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Method of Appointment and Disciplinary Action against Judges Another dissenting opinion recorded by the aforesaid 19 member of JS Committee wasconcerned with whether the Judges should be appointed by the Judicial Council or theLegislature and whether disciplinary action should be taken by the Judicial Council or theLegislature. The dissenting members stressed on the importance of an independent, competent,impartial, effective and accountable Judiciary in a democracy. They observed that theindependence of the Judiciary was dependent not only on the service conditions of the Judgesbut also on how and through which mechanism Judges were appointed. In their opinion, if underthe existing system of appointment of Judges by the Judicial Council effective Parliamentaryhearing of Judges could be conducted, appointment can be made in an accountable way, andthe disciplinary and dismissal procedures of Judges can be rendered more effective by makingappropriate law. Hence, if a system is introduced for appointment of Judges by the Legislatureor any Committee of the Legislature and subsequent approval of such appointments throughvoting in the Legislature, it will adversely affect the concept of separation of power and tend toestablish the Judiciary as a subservient organ of the Legislature. It will also lead to excessivepoliticization of the appointment of Judges which will eventually encourage interference in theact of dispensing justice. Thus it will lead to centralization of power in the Legislature resulting inimposition of an arbitrary governance system by eroding the independence and competence ofthe Judiciary.

Who should interpret the Constitution and the law – the Supreme Court or the LegislatureCommittee? Another issue of extensive debate among the members of the JS Committee was about whetherthe Supreme Court or the Legislature Committee should be empowered to interpret theConstitution and the law. The above mentioned 19 members of the JS Committee recorded theirdissent in favor of entrusting the role of interpretation of the law and the Constitution and tomake final resolution of such disputes to the Judiciary. They argued that the nation has opted togo for federalism for the reason of hardships caused to the common people by the centralizedunitary system of governance in Kathmandu. The attempt to take away the disputes between aState and the federation or inter-State disputes and entrust those disputes to the Legislature isintended to increase the powers of the Legislature which is bound to prove counterproductivefor the very concept of federalism. Not only this, such an arrangement shall also disturb the verybasics of the doctrine of separation of power resulting in subservience of the Judiciary to theLegislature. Hence, the dissenting members expressed the opinion that the role of interpretationof the Constitution and the laws should be the exclusive domain of the Judiciary. If in case theJudiciary erred on the interpretation of the Constitution, the Legislature shall be well within itsrights to rectify the error by amending the law.

The Constitutional Court Last but not the least, three CA members of JS Committee belonging to Madhesi JanadhikarForum–Nepal recorded their dissent emphasizing the need of creating a Constitutional Courtentrusted with the following role of interpretation of: a) Constitution, b) issues relating to nationalconcern, c) issues relating to human rights and civil concern, and d) political issues.

Further Debate on the Relevance of the Constitutional Court Although initially the JS Committee had discussed the issue of the Constitutional Court, itsConcept Paper finally came out with the recommendation for an integrated system of justice.However, subsequently the issue of a Constitutional Court came to occupy a prominent place inthe recommendation of the Taskforce. It came out with the proposal of splitting the Supreme

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Court and entrusting constitutional, federal, electoral and other allied matters to theConstitutional Court.

The issue of creating a separate Constitutional Court has been a major topic of debate bothinside and outside the Constituent Assembly. Nowadays, arguments for and against the conceptare being freely put forward by the advocates and opponents of the concept.

One of the major reasons for the establishment of a Constitutional Court in Europe andelsewhere is related to the antipathy to or dissatisfaction with the work and performance of theexisting Judiciary. For instance, in Germany the Constitutional Court was established as areaction to the Weimer Court ('Staatsgerichtshof' ) that proved very ineffective to check theambition of Hitler who ran executive tyranny.9 Similar was the case in South Africa where theConstitutional Court was created as a reaction to the then existing Supreme Court which waslargely perceived as an appendage to the apartheid regime.

The objective of establishing Constitutional Courts in Europe and elsewhere are meant to: a)ensure adherence to a new Constitution by protecting it against legislative majorities or protect itagainst an inter–organ conflict; b) ensure unity and finality in interpretation, avoiding thepossibility of different courts adopting different interpretations; c) provide a visible symbol ofconstitutional progress; d) stop tendencies of undermining the Constitution through the policiesof judicial deference to the executive; and e) probably, create a system that can establish a sortof parallelism to the judicial tradition of constitutional review developed in the aftermath of themagical Marbury Vs. Madison (1803) doctrine without going too close to embracing CommonLaw.10

But most of the above mentioned reasons do not hold much ground in the present Nepalicontext. The Supreme Court of Nepal, particularly after the promulgation of the 1990Constitution, has displayed remarkable judicial activism in checking digressive ambitions of theExecutive and the Legislature and in guiding the evolution of the constitutional discourse. Thusit will be grossly unfair to "belittle the achievements made by the Nepali Judiciary in the lasttwenty years in promoting constitutionalism, rule of law and human rights."11 Secondly, therecommendation of the taskforce to establish a Constitutional Court also runs contrary to the JSCommittee Report which underscores the need of devolution of more power to provincial courtsand promotion of easy access to justice. But by its very nature the Constitutional Court is acentralized institutional which will retain judicial power in Kathmandu at the cost the provinces.Thirdly, there is also danger of the Constitutional Court providing fodder to create a lawyers'paradise in Kathmandu as the capital based lawyers will try to drag to Kathmandu every issueinvolving even remotely an issue of interpretation of the Constitution. Fourthly, the establishmentof a Constitutional Court may confuse the overall judicial system and hierarchy, and createconflict, at times even a state of confrontation, with the Supreme Court in regard to theirrespective jurisdictions.

9 Donald P Kommers, The Constitutional Jurisprudence of Federal Republic of Germany (Durham/London, DukeUniversity Press, 1997 (1989), p. 14.10 Dr. Anand Mohan Bhattarai; "Designing the System of Justice for Federal Nepal: Possible Contributions ofComparative Constitutional Law," NJA Law Journal, National Judicial Academy, Nepal (200) at p.. 11, Ibid, P 172.

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However, there is also some substance in the argument about the lack of consistency in theconstitutional interpretations made by the Supreme Court. Our apex court has been oftencriticized for inconsistent, sometimes even controversial, interpretations of the constitutionalityof laws and the constitution. In order to address this issue of inconsistency in interpretations andto manage the complex relationship within the judiciary, it shall be rather more appropriate to setup for this purpose a Constitutional Bench within the Supreme Court comprising of specifiednumber of Judges assigned to the bench on the basis of their expertise, experience andknowledge for a specified period.

Report of CA Dispute Resolution Sub-Committee As discussed earlier, the JS Committee Report submitted to the Speaker of Constituent Assemblycould not be unanimous and contained several points of disagreement in regard to the scope, structure, powers and jurisdiction of the Judiciary. Subsequently, the Dispute Resolution Sub-Committee constituted under the Constitutional-Political Dialogue and Consensus Committee, extensively debated those differences and, finally, came out with a Report with unanimous recommendations.

Creation of the Constitutional CourtMost notable of those agreements is concerned with the creation of the Constitutional Court comprising 5 justices including its Chairperson. In order to address the assumed conflict and/or confrontation between the Supreme Court and the Constitutional Court in the future, the Chief Justice of the Supreme Court has been proposed to be designated as ‘ex-officio’ Chairperson ofthe Constitutional Court as well. Moreover, the jurisdiction of the Constitutional Court has been well defined to include the following issues:

1. Federal or provincial statutes considered inconsistent with the Constitution,2. Inconsistency between federal and provincial laws,3. Any constitutional amendment considered contradictory with the basic structure of the

Constitution,4. Any dispute relating to the constitutionality of dissolution of the House of

Representatives,5. Disputes relating to the lists of powers between the federation and the States, between

States, between a State and the local level and between local levels.6. Disputes arising between/among the constitutional bodies and those relating to the

qualifications of the President, Vice President, Prime Minister, Speaker and Deputy Speaker of the House of Representatives, Chairperson and Vice Chairperson of the National Assembly and members of the federal Legislature Parliament,

7. Disputes relating to recognition of political parties,8. Complaints relating to nullification of elections of the President, Vice President, Prime

Minister and the federal Legislature and election related offences specified by the law,9. Any serious constitutional issue referred to the Constitutional Court by the President for

its opinion, and10. Any issue relating to inconsistency between a federal law and a State law involved in a

lawsuit under consideration before any subordinate Court shall have to be referred to theConstitutional Court for resolution, and the concerned Court shall decide the case only after resolution of the issue of inconsistency.

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The powers and jurisdiction of the Supreme Court have not been much interfered with and virtually remain the same as proposed in the JS concept paper. Further, it has been unanimously recommended that only such a person can be eligible for appointment as the Chief Justice of the Supreme Court who has served either the Supreme Court or the Constitutional Court as a Justice for at least three years and who has got at least one year of remaining tenure. At least for the time being it has ended the controversy triggered by the earlier recommendation made in the JS Concept Paper about opening the door of eligibility for appointment as the Chief Justice of the Supreme Court even to persons from outside the Judiciary. It needs to be viewed as a wise and appropriate decision in the best interests of the Judiciary and the nation.

Recommendation Mechanism for Appointments and Removal of JudgesIt is also highly gratifying to note that the Dispute Resolution Sub-Committee has finally come out with a recommendation for the creation of separate Judicial Commissions at the federal and provincial levels for the appointments, transfers, disciplinary proceedingsand removal of judges of all levels of the Courts including the Supreme Court and the Constitutional Court. This recommendation is most welcome in the sense that it has rejected the retrogressive and dangerous proposition of the creation of a Special JudicialCommittee of the Federal Legislature, and a Special Judicial Committee of District/Local House of Representatives for the appointments, disciplinary proceedings and removal ofjudges - (Art. 29 (1), (5) and (8) of the JS concept Paper). Such a process of judicial appointments and disciplinary proceedings against erring judges in principle respects thedoctrine of separation of powers and also tends to protect the independence of the Judiciary.However, the composition of the proposed Judicial Commissions at the federal and provincial levels seems to be clumsy, oversized and susceptible to somewhat executive influence. The proposed Federal Judicial Commission and the Provincial Judicial Commission shall consist of 11 members and 9 members respectively, including at the most three Parliamentarians and two representatives of the executive chief, the Prime Minister. The presence of non judicial members on the Commissions may cause considerable impact of the Executive and the politicians on the process of judicial appointments and disciplinary proceedings which can interfere with the independence of the Judiciary.

Mechanism for Proceedings against Corruption & Abuse of Authority The Report of the CA Dispute Resolution Sub-Committee has envisaged for separate

mechanisms and procedures for conducting necessary proceedings against corruption and abuse of authority by Judges working in the Judiciary at different levels of the Courts.

a. Regarding Supreme Court, Constitutional Court & High Court JudgesIt has recommended to entrust the Federal Judicial Commission with the responsibility ofhearing all the complaints, including those relating to violations of judicial conduct, against the Chief Justice and Justices of the Supreme Court and the Constitutional Court

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and the Chief Judges and Judges of the High Courts. A separate unit shall be constitutedwithin the Federal Judicial Commission to conduct such hearing.

If the preliminary report of the complaint hearing unit shows non

compliance with the Code of Conduct or commission of an act contrary to the official dignity, the Commission will serve a warning to the concerned Judge.

If the preliminary report of the complaint hearing unit ‘prima facie’ shows

corruption or misuse of authority by any Judge, the Commission may decide to send the case file to a body authorized by the Constitution and the law to conduct investigation in case of corruption or abuse of authority for further investigation and prosecution, if required.

If the preliminary report of the complaint hearing unit shows repeated

violations of the Code of Conduct, repeated infringement of official dignity, incompetence, dereliction of official duty, lack of competence, dishonesty towards official duty, misconduct or corruption, the Commission shall decide to write to the House of Representatives to initiate impeachment proceedings in case of Judges of the Supreme Court and the Constitutional Court and to the Provincial Assembly in case of the Judges of the High Courts.

A judge relieved of his post on the charge of corruption or impeachment

may be prosecuted at any time in a competent court.

b. Regarding District/Local Court and Subordinate Court Judges:A similar system of disciplinary proceedings shall be adopted by the Provincial Judicial Commission in case of District/Local and subordinate Court Judges in regard to serving warning or conducting further investigation and undertaking prosecution on the charge of corruption or abuse of authority by an authorized body. However, in cases of corruption, dereliction of duty, misconduct etc., the Commission may take a decision based on the nature of the offence to relieve the erring Judge of his/her post or dismiss him/her from service followed by prosecution in a competent court.

2. Position Paper of Nepal Bar Association on Judicial System 12

The Concept Paper on Judiciary prepared by the JS Committee of the Constituent Assemblygenerated much debate about the form, structure and scope of the Judiciary being designedunder the Constitution in gestation. Nepal Bar Association and the Supreme Court of Nepalcame out with their respective concept papers in this regard. The Position Paper of Nepal BarAssociation (NBA), an umbrella organization of legal practitioners practicing all over Nepal, hasclearly put forward its position vis–a-vis some of the major proposals made by the JSCommittee in its Concept Paper on Judiciary. Nepal Bar Association has asserted that therestructured Judiciary of Nepal should be "accessible, effective and accountable", and anindependent mechanism should be formed "in order to accomplish the independence,accountability and transparency of the judiciary."

12 Position Paper of Nepal Bar Association on the Judicial System under Nepal's New Constitution.

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Some of the major areas of concern and the position of Nepal Bar Association on the proposedjudicial system can be briefly described as follows:

Challenges Facing the Judiciary The following six major challenges have been identified by Nepal Bar Association:

i) Problem of Access: Due to multiple factors like lack of awareness, excessive cost,geographical inaccessibility and delays in the system most of the people are stilldeprived of the use of court system. So the structure of the court should be designedunder the federal system with special focus on the poor and the unprivileged peoplein rural and outlying regions.

ii) Corruption and irregularities: Nepali Judiciary has been accused of deep rootedcorruption which has sometimes accounted for contradictory decisions made by theapex court on similar issues. Hence, there is a need of creating an effectivemechanism for disciplining the Judges.

iii) Controversies and Lack of Transparency in the Appointment Process: There isalleged lack of transparency in appointments of Judges which are in most casesguided by personal preferences and political considerations.

iv) Lack of inclusiveness in character: The existing Judiciary is not inclusive and doesnot reflect the diversity of the country. Viewed from gender equality perspective,there is a great challenge to address inclusion of women and minority groups in thejudiciary.

v) Great Number of Pending Cases: Ever accumulating number of backlog of casesand impediments to speedy disposal of cases is another problem confronting theJudiciary.

vi) Implementation of Verdicts: Implementation of Court verdicts is yet another problemconfronting the Judiciary.

Structure of Courts Nepal Bar Association agrees that an integrated model of Judiciary is the most appropriatesystem in the context of federal system of Nepal. NBA agrees with the proposal of the JSConcept Paper regarding three tiers of regular courts under the federal system, with federalSupreme Court at the apex of the judicial hierarchy, High Courts in each provincial State andDistrict/ Local Courts at the bottom.

Jurisdiction of Courts As regards jurisdiction of the Courts, NBA agrees with the jurisdiction of the Courts under thefederal system as set out in JS Concept Paper. Such an arrangement is believed to be closer toaddress the issue of easy accessibility to courts for the common people. In addition, NBA alsoadvocates for granting to the provincial High Courts the power of issuing all types of writs andinjunctions in order to ensure common people's accessibility to courts and justice.

Selection and Appointment of Judges NBA strongly opposes the proposal of JS Concept Paper about selection and recommendationfor appointment of Judges to be made by the Special Committee of the Legislature. NBAbelieves that in order to uphold the principle of independence of Judiciary and separation of

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powers the selection and appointment of Judges should be made by an independentmechanism, and not by the Legislature. Appointments of Judges through an independentjudicial mechanism will ensure independence, accountability and transparency in the judiciary.Such a separate mechanism for recommending appointment of Judges should be created at theFederal and Provincial levels. NBA disapproves completely any legislative or executiveinterference in appointment of Judges. However, NBA also calls for providing equal importanceand opportunity to lawyers and judicial staff for appointment as Judges.

Reappointment of Judges NBA believes in the need of restructuring the Judiciary. But it is also skeptical that thereappointment of Judges within three months of promulgation of the Constitution, as proposedby the JS Concept Paper, may encourage a situation where Judges indulge in lobbyingpoliticians for securing reappointment.

Interpretation of the Constitution and Laws NBA has expressed grave concern about the provision in the JS Concept Paper that the SpecialJudicial Committee of the federal Legislature shall have the power to interpret the Constitutionand the laws – (Art. 29(2)(a)). NBA has further reaffirmed its belief in the principle ofindependence of the Judiciary and the concept of the Judiciary being the final interpreter of theConstitution and the laws.

Accountability NBA cited a survey, which it had conducted, to support its statement that the Judiciary should be a corruption free sector and the Code of Conduct of Judges should be strictly implemented.NBA also believes in the need of creating an independent body to look into corruption relatedissues in the Judiciary. Such an independent body should have power to investigate complaintsagainst the federal Supreme Court and provincial High Court Judges. It has also recommendedcreating a similar type of investigation mechanism for district and local level Judges. NBArecommends for strict enforcement of impeachment proceedings against the erring Judges ofthe apex Court. NBA maintains that the existing practice of legislative hearing of Judges isappropriate for maintaining accountability of the Judiciary.

3. Supreme Court Justices on the Future System of Justice13

Five senior Justices of the Supreme Court sat together to consider the issue of restructuring ofthe Judiciary and, subsequently, came out with their views on the proposed system of justice.An overview of the major line of thought of the apex Court senior Justices may be relevant inthis regard.

Structure of the Judiciary The Supreme Court Justices have also favored an integrated/unitary system of Judiciary led bythe federal Supreme Court and followed by provincial High Courts at the intermediary level andthe District Courts at the bottom of the hierarchy. In order to ensure easy access to justice theyalso suggested setting up Local Courts for hearing cases specified by the law.

13 Opinion Paper prepared by five senior Supreme Court Justices

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Jurisdiction of the Courts Jurisdiction of the federal Supreme Court

The federal Supreme Court shall exercise the jurisdiction of constitutional interpretation andextra-ordinary, appellate and original jurisdictions. Under the jurisdiction of constitutionalinterpretation, the Supreme Court shall exercise the power to declare 'ultra vires' any lawenacted by the federal or State Legislature which seems to have imposed undue restriction onthe fundamental rights granted by the Constitution or which seems to be incongruous with theConstitution. In addition, the federal Supreme Court shall also have jurisdiction to try disputesrelating to any law inconsistent with the federal law, any amendment in the Constitutioninconsistent with its basic structure, any dispute between the federation and a State or inter-State disputes, disputes arising between constitutional bodies and those relating to thequalifications and election of some constitutional authorities including the President, VicePresident, Prime Minister, Speaker and Deputy Speaker of the House of Representatives andmembers of the federal Parliament.

In an obvious bid to address the raging controversy about the establishment of theConstitutional Court, the Supreme Court Justices have proposed for the creation of aConstitutional Court comprising of five Justices assigned to the Bench by the Chief Justice for aspecified period on the recommendation of the Judicial Council. Their Opinion Paper hasproposed extra-ordinary jurisdiction for the Supreme Court which is almost similar to the onerecommended by the JS Concept Paper of the Constituent Assembly.

Likewise, under its appellate jurisdiction, the Supreme Court shall hear appeals upon the casesdecided by High Courts exercising their original jurisdiction or such appeals decided by HighCourts which the concerned High Court deems fit for review by the Supreme Court on theground that it involves serious question of interpretation of law.

Jurisdiction of High Courts

High Courts shall exercise jurisdiction to hear writ petitions, to try original cases, to hear appealsand to undertake revision of cases.

As for the jurisdiction of the District and Local Courts, it shall be as provided in

the law.Appointment of Judges The Opinion Paper of the senior Justices has recommended for appointment of the ChiefJustice and other Justices of the Supreme Court by the President on the recommendation of theConstitutional Council and the Judicial Council/Commission respectively. Likewise, the ChiefJudge and other Judges of the provincial High Courts shall be also appointed by the Presidenton the recommendation of the Judicial Council/Commission. However, the District CourtJudges /Local Court Judges shall be appointed by the Chief Justice on the recommendation ofthe Judicial Council/Commission. It has been also recommended that the Chief Judge orJudges of one provincial High Court can be transferred to another provincial High Court by theChief Justice on the recommendation of the Judicial Council/Commission.

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Accountability & Disciplinary ProceedingsTheir Opinion Paper has envisaged for initiating disciplinary proceedings against Judges inorder to make them accountable. The Chief Justice of the federal Supreme Court may beimpeached on constitutionally specified grounds, including misconduct, incompetence,dishonesty, gross violation of Code of Conduct etc. If the federal Parliament approves theresolution of impeachment by a two-thirds majority of the total existing members, such a personshall be ipso facto relieved of his/her post. A Chief Justice or Justice of the Supreme Court thusimpeached may be prosecuted for having committed any irregularity during his/her tenure.

Similarly, a Chief Judge or Judge of any provincial High court or a District/Local court Judgemay be removed from his/her post or may be prosecuted for misconduct or incompetence ordishonesty if any recommendation to the effect made by the Judicial Accountability andInvestigation Commission is approved by the President in the case of a Chief Judge or Judge ofa provincial High Court and in the case of a District/Local Court Judge by the Chief Justice.

The Judicial Council/CommissionThe Supreme Court Justices have preferred to continue with the existing provision of theJudicial Council but with some variation in its structural composition. They have proposed for afive-member Judicial Council chaired by the Chief Justice and comprising of two senior mostJudges of the Supreme Court and the Law and Justice Minister as an ex-officio member,besides an independent person of repute appointed by the President on the recommendation ofthe Constitutional Council.

New Concept of Judicial Accountability and Investigation Commission Responding to the increasing grievances and complaints against irregularities andunaccountability in the Judiciary, the Supreme Court Justices have mooted a new concept ofcreating a Judicial Accountability and Investigation Commission. This Commission shall be ledby one ex-Chief Justice and comprise of one ex-Justice of the Supreme Court and oneindependent person, who has not been a member of any political party since last five yearsbefore his/her appointment, appointed by the President on the recommendation of theConstitutional Council. This Commission shall be empowered to investigate against Judges onthe allegation of dishonesty in carrying out their accountability, misconduct or incompetence orindiscipline, and recommend for dismissal from their posts or for initiating other necessaryactions against them. The Commission shall also have power to recommend for takingdisciplinary or departmental action and starting prosecution for corruption.

Budget and Other Expenses of the JudiciaryThe Opinion Paper of the Supreme Court Justices has proposed for disbursement of at leastone percent of the annual national budget to moot the administrative and other expenses of allthe Courts of Nepal. It has also proposed that all the expenses required for court operationincluding salaries, perks and pension of Judges shall be charged against the ConsolidatedFund.

Designing the System of Federal Judiciary for Nepal: A Need for

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Judicial Reform A close look at the salient features of the JS Concept Paper of the Constituent Assembly, thePosition Paper of Nepal Bar Association and the Opinion Paper of the senior Justices of theSupreme Court of Nepal on Judiciary clearly shows that the current debate or discourse aboutthe future Judiciary in the new Constitution is mainly centered around three issues: a. Judicial independence, b. Judicial accountability, and c. Accessibility and decentralization of justice.

While designing the system of justice for federal Nepal, these shared concerns of the commonpeople, the politicians, the concerned stakeholders and the intelligentsia must be taken intoserious consideration, and suitably addressed.

Structure of the Courts All the three above mentioned stakeholders have rightly agreed to a unitary system of three-tiers Judiciary, with the federal Supreme Court at the top, the provincial High Courts at theintermediary level and the District Courts at the bottom of the hierarchy. There is also no disputeabout the possible option of setting up local Courts with limited jurisdiction, as necessary, at theconstituent unit level within every district.

Judicial Independence vs. Judicial Accountability Considering the growing interest of politicians in the Judiciary as well as an increasing trend ofmounting pressure on Judges caused by various extraneous factors, the future Judiciary needsto be heavily guarded against any interference with or encroachment upon the independence ofthe Judges and the Judiciary. In order to ensure the decisional independence of the Judges andindependent functioning of the judicial system, both the structural and the functionalindependence of the Judiciary needs to be guaranteed in the new Constitution. The followingsuggestions should be considered to ensure the structural/institutional independence andfunctional independence of the future Judiciary:

Structural Independence of the Future Judiciary Structural or institutional independence of the Judiciary enables it to conduct its

administration and the act of justice dispensation without any type of influence orinterference from other sources. In order to ensure the structural independenceof the future Judiciary in Nepal first of all the procedures relating to judicialappointments and disciplinary actions against judges need to be insulatedagainst political influence or interference. No matter whatsoever may be thename of the mechanism designed for appointment of judges, whether JudicialCouncil or Judicial Commission, it should have decisive presence of Judges andcomparatively lesser participation of politicians in its composition. The reductionof strength of Judges in the Council will weaken the decision making capacity ofthe Judiciary to pick up appropriate persons to serve in the Courts. In the ultimateanalysis, a selection procedure of Judges guided and controlled by a powercentre other than the Judiciary is likely to have negative repercussions on judicial

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independence. The model of the Judicial Council/Commission proposed by theSupreme Court in its Opinion Paper appears to be more appropriate except inthe case of an independent person of repute appointed by the President on therecommendation of the Constitutional Council. In fact, it would be moreappropriate to include a Senior Advocate of repute having not less than 20 yearsof professional experience to be appointed by the President on therecommendation of Nepal Bar Association. Such a provision will make thecomposition of the Judicial Council/Commission more representative incharacter. However, a Senior Advocate who is nominated on the JudicialCouncil/Commission as a representative of Nepal Bar Association should bedebarred from being considered for the position of a Supreme Court Judge afterhis/her retirement from the Council.

The selection of the members of the Judicial Council should not be made by the

Legislature or the Executive. Besides, independent and concrete criteria shouldbe prescribed for selection of Judicial Council members other than the ex-officioones. Only honest, impartial, non-political and persons of integrity should beconsidered for such appointment.

The Judicial Council must display the highest degree of transparency and

accountability not only in the selection procedure of judges rather also in itsdecision making process, disciplinary proceedings and its ombudsman roletowards the Judiciary.

The concept of constituting a Judicial Accountability and Investigation

Commission mooted by the Supreme Court is indicative of realization by theapex Judiciary of the need of ensuring accountability in the Judiciary. However,utmost caution should be taken to make effective provision for the structure,powers and processes of the proposed Commission so that it could functioneffectively to control irregularities and corruption in the Judiciary. Otherwise it willdegenerate into only a cosmetic arrangement.

The proposal made in the Concept Paper of CA JS Committee about throwin

open the door to prospective legal professionals from outside the Judiciary forbeing eligible for appointment as the Chief Justice of the federal Supreme Court(Art. Art. 6(3)) is bound to politicize the Judiciary and introduce instability in thewhole Judicial system. The destabilizing effects on the prosecution mechanismand processes caused by the present constitutional practice of appointing theAttorney General on the recommendation of the Prime Minister can betterillustrate this point. So the top spot in the apex Judiciary should be reserved onlyfor qualified and eligible justices serving the Supreme Court. It is gratifying tonote that the Dispute Resolution Sub-Committee has finally come out with therecommendation for appointing the Chief Justice from the top judicial cadre,having at least three years of experience as a Justice of either the SupremeCourt or the Constitutional Court.

It is advisable to make a new mandatory provision in the proposed Constitution

obligating the Judicial Council/Commission to recommend for filling up the vacantpositions at the Supreme Court within a period not exceeding three months from

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the date of such vacancy. Such a provision will save the appointment processfrom being a victim of the whims, calculative strategy or personal likes or dislikesof the Chief Justice about prospective candidates to be considered forappointment to the vacant post. In the ultimate analysis, it will also protect theSupreme Court against the compulsion of working under strength for no validreasons.

The recommendation made by the JS Concept Paper about following the

principle of proportionality and inclusiveness while appointing judges (Art. 2(3))should be implemented in practice. Appointment of Judges for different levels ofthe Judiciary should be made on a proportionate basis and according to theprinciple of inclusiveness. Persons belonging to the female community, ‘Janjati’,Madhesi, Dalit, and Muslim communities should also be considered forappointment as Judges. However, it is also advisable to strike a note of cautionabout not compromising with quality and competence while making suchappointments.

The CA JS Concept Paper has put forward a very retrogressive proposition of

entrusting the jurisdiction of interpretation of the Constitution and the law to theproposed Special Judicial Committee of the Federal Legislature. Such anadventurist proposal has been righty opposed by Nepal Bar Association ascontrary to the principle of balance of powers and also an encroachment uponthe authority of the Supreme Court to be the final arbiter of the Constitution andthe law. The very idea of interpretation of the Constitution by a Committee of theFederal Legislature is retrogressive and cannot be acceptable in a democraticsystem of governance. It is bound to erode the independence of the judiciary.

The existing practice of Parliamentary hearing of judges, although theoretically

suitable for maintaining accountability of the Judiciary, seems neither practicalnor appropriate in the present socio-political context of Nepal nor is it effective inits present form. In the recent past, the Parliamentary hearing of a few Judgeshas caused much mud-slinging and irreparable damage to the public trust in theJudiciary, without achieving any positive consequence in the end. So either itshould be completely done away with or its process, procedures and powersshould be revisited to make it more effective, meaningful and decisive.

Although the mandatory requirement of reappointment of Judges of all levels

within three months of the promulgation of the Constitution proposed in the JSConcept Paper (Art. 32(5), (6)) has been half-heartedly received by Nepal BarAssociation, the proposal is not without merit, and deserves to be consideredseriously. Persons of dubious character and doubtful integrity can have no placein the Judiciary. Judgeship is more than a job; and by its very nature it is a highlysensitive profession entrusted with the duty of protecting the life, liberty andproperty of the citizens. The profession of a judge cannot be equated with that ofother constitutional bodies. Therefore, it will be in fitness of things to envisage aprovision about the reappointment of judges after the promulgation of theConstitution. But at the same time the politicians will have to rise above theirpolitical lines, petty interests or personal likes and dislikes, and should display

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exemplary sincerity and commitment for preserving and promoting theindependence of the future Judiciary.

There is also a need to ensure the personal safety of the Judges. Appropriate

measures should be taken by the government for the protection of the courts andthe Judges so that they may not become victims of threats, intimidation or acts ofviolence. The disgusting act of the killing of Supreme Court Justice Ran BahadurBam a few years back in broad day light should serve as a constant reminder tothe government to put in place necessary precautionary safety and securitymeasures in this regard.

In order to guarantee judicial autonomy and independence of the Judiciary it is equally importantto ensure financial independence of the Judiciary in the Constitution. The Judiciary must beallocated a fixed percentage of the annual national budget with a clear provision in theConstitution preventing decrease in the judicial budget. A provision can be made for thepreparation of the judicial budget in consultation and coordination with the apex Judiciary.Moreover, in order to secure autonomy and independence of the Judiciary it shall be moreappropriate to ensure in the future Constitution, as proposed by the Supreme Court Justices, tocharge all the expenses required for court operation including salaries, perks and pension ofJudges against the Consolidated Fund.

Functional Independence of the Judiciary Judges must have guaranteed tenure until retirement or expiration of the term of their

office. Also, no alterations should be allowed in the financial benefits and other facilitiesof the judges to their detriment during the term of office. Judges should also be assuredof fair trial in case of being subjected to disciplinary proceedings. A judge gripped by asense of insecurity can hardly be bold or assertive enough to discharge his/her duty inan independent way.

Judges should be ensured protection against inappropriate interference with or undue

influence from any quarter while discharging their duties. Judges are required to strictly comply with their Judicial Code of Conduct. Functional independence of the Judges is also correlated to the structural independence

of the Judiciary. These two concepts are to some extent mutually interdependent. Judicial independence may be a minimal guarantee of accountability, but searching for

accountability by erring on independence is dangerous. This should be critically viewedwhile designing the system of justice for Nepal.14

Some Other Aspects of Reform in the Judiciary Accessibility of justice and devolution of judicial power has engaged the attention of all

and sundry. In order to make justice easily accessible to the people in far-flung villagesor remote areas of the country, there is a need to create Local Courts like ‘Lok Adalats’,‘Jan Adalats’ or Mediation Centers, as deemed necessary, to function under the generalsupervision of District Courts. Such local Courts can be set up at the village leveladdressing the need of a constituent unit of generally 8 to 10 villages depending on the

14 Ibid, Dr. Bhattarai, P.187

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size of population, physical accessibility and geographical distance. If the State canprovide and ensure safety and security, even the concept of introducing Mobile LocalCourts may be considered in the long run.

In the context of Kathmandu Valley an integrated Family Court should be created having

jurisdiction over all three districts of Kathmandu, Lalitpur and Bhaktapur. The FamilyCourt should be granted exclusive jurisdiction to deal with family related cases includingthose relating to marriage, divorce, domestic violence, partition, juvenile justice etc.

Likewise, Specialized Courts should be set up at specific geographical locations outside

Kathmandu valley. Judges shall be required to visit those Courts at periodic intervalsdepending on the volume of cases, and for the intervening period the concerned DistrictCourts can be asked to facilitate other administrative and record keeping functions ofthose Courts. Such a provision will be helpful in devolution of power and accessibility ofjustice.

As discussed earlier, instead of going for a Constitutional Court it will be more

appropriate to create a Constitutional Bench at the Supreme Court. Such aConstitutional Bench shall comprise of five Judges assigned by the Chief Justice basedon their expertise and knowledge for a specific period who will hear the cases 'en banc'.The Constitutional Bench should be assigned the jurisdiction of interpretation of theConstitution and the law, disputes between the Federation and the States or inter-Statedisputes, any jurisdictional disputes arising between constitutional organs, disputesrelating to the constitutional authorities like the President, Vice President, Prime Minister,Speaker and Deputy Speaker, members of federal Legislature etc. Thus without creatinga parallel institution in the name of the Constitutional Court and without exposing theJudiciary to a possible conflict in the future between the Supreme Court and theConstitutional Court, this alternatives option of creating a Constitutional Bench will bemore expedient and appropriate to address the grievances and concerns as discussedabove.

Speedy justice is the right of every consumer of justice. But sometimes unwarranted

delay in disposal of cases for multiple reasons results in accumulated backlog of casescausing hardships and sufferings to the litigants. The strategies and road map outlinedby the Third Strategic Plan of the Nepali Judiciary needs to be implemented effectively toaddress this issue. And this practice of planned operation of the Judiciary should beformally recognized and continued in the future as well.

It will be more practical and effective to assign to the Executive branch of the State the

duty of implementation of the Court verdicts in close coordination with the Judiciary. Aconstitutional provision in this regard shall obligate the Executive to take charge of thejob which has so far remained grossly neglected.

Judiciary cannot be deemed as a watertight compartment comprising only of the judges

and the court employees. The legal practitioners should be also considered a crucialcomponent of the Judiciary. "A flourishing law profession, a legally qualified judicialbureaucracy and an independent Judiciary complement each other".15 Professionalenhancement and capacity building of all those justice sector actors is equally importantfor effective functioning of the Judiciary. So a holistic approach needs to be taken to

15 Dr. Bipin Adhikari, "Restructuring Nepal's Judiciary". P. 3 -(available on Web).

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strengthen the Judiciary. Judicial training, judicial education and legal training at regularintervals can go a long way in serving this purpose.

While restructuring the Judiciary, the institution of government attorneys entrusted with

the duty of prosecution and defense of cases should be accorded equal importance andpriority. The organizational structure of the Office of Attorney General should be createdin tune with the structure, form and levels of the Judiciary. The JS Concept Paper hasrightly proposed for the creation of a prosecutorial system led by the Attorney General atthe centre followed by State Attorney Generals in provincial States and governmentattorneys at the district and local levels.

Last but not the least, the existing legal aid program should be revisited and restructured

to provide more effective and meaningful legal aid to the indigents and the marginalizedsections of the society.

Some Concluding RemarksAt present the Nepali Judiciary is standing at the cross-road of transition and legacy of itstradition. It is confronted with the challenge of how to manage a smooth transition from thetraditional precepts and practices prevalent in our court system to a reformed, dynamic andmodernized system of justice. Without such a successful transition the Nepali Judiciary canneither address the aspirations and expectations of the people nor can it win the public trust inthe Judiciary. Some constitutional values like democracy, rule of law, human rights and anindependent and competent system of justice practiced by the 1990 Constitution of Nepalshould be internalized in the new Constitution complemented by some new found values likefederalism, autonomy, devolution or decentralization of power, inclusiveness and participation.And the role of the guardian of the Constitution and arbiter of the fundamental rights of thepeople should be entrusted to the apex Court. Effective constitutional provisions need to bemade for ensuring the independence, impartiality, transparency and accountability of theJudiciary. However, in the name of creating an independent and accountable Judiciary wecannot afford to create a lopsided Judiciary tilted towards accountability at the cost ofindependence. The future judicial structure, therefore, must strike a proper balance betweenindependence and accountability.

(With acknowledgment to Nepal Constitution Foundation, which arranged for facilitation and presentationof this paper in April, 2015, with a view to providing inputs to the constitution making process in Nepal.)

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