– Bipin Adhikari
The Kathmandu Post
May 26, 2014
The tussle between the Parliamentary Hearing Special Committee (PHSC) and the Judicial Council (JC) regarding the hearing for eight controversial nominees for Supreme Court justices has progressed to a new level. Initially, the Council argued that the House had overstepped its jurisdiction by summoning its members for clarification while the latter argued that it had the right to do so. The hearings of the nominees, however, ended on Sunday. In this context, Pranab Kharel and Darshan Karki spoke to constitutional expert and Dean of Kathmandu University’s School of Law, Bipin Adhikari, about the constitutional underpinnings of the dispute, ways to address the problem and what this controversy means for the independence of the judiciary and the notion of separation of powers.
How do you see the ongoing controversy regarding the eight nominees for positions as Supreme Court justices?
The Judicial Council was created to deal with all issues regarding appointments, transfers and disciplinary action regarding judges. Before that, this power, one way or the other, was handled by the government, which raised many questions about the independence of the judiciary. So during the 1990s, an autonomous body was created, where the judiciary was given enough power to handle all appointments itself but was subject to confirmation by other stakeholders, including the law minister who represented the government. The idea was that the Chief Justice (CJ) should exercise all powers regarding appointments and taking disciplinary action but that he should do so only after consultations with the law minister and other members of the JC. Once the Council started working, it delivered well. However, with the emergence of partisan politics in the country, the JC became an instrument used by its members to divide their share in the appointments and transfers.
Does this state of affairs bring into question the relevance of the Council?
I think the Council has its relevance. This is the best anybody can do. If we go through the options in other parliamentary democracies, Nepal’s JC has even been a model for some countries. Our problem is basically with the leadership. The CJ was expected to take the lead to ensure that there is a proper identification process for the appointment of judges. It was expected that qualified people would be appointed by keeping the history of legal experts in mind and their performance in the law profession as well as the rest of the judiciary. But the Chief Justice could not deliver and instead, he began sharing the number of seats with other members, what we call bhagbhanda. The CJ was not able to assert himself and perform in a way that would have allowed meritocracy to prevail and also to make sure that competent people were selected and recommended.
Given the tussle we have witnessed between the Parliamentary Hearing Special Committee and the JC, how do see the practice of parliamentary hearing in our context?
This kind of parliamentary hearing does not exist anywhere in the same form. The Interim Constitution created this provision even though it hardly had any backup in terms of theories and principles and even real life experiences on how parliamentary hearings should work in a parliamentary democracy as far as judges were concerned. We are speaking here of the Parliament and how to make sure that the independence of the judiciary is upheld. The constitutional provision only says that the Parliament can conduct hearings on recommended judges. But it does not say how it should pursue this cause and whether the Parliament has the right to withdraw the recommendations made. Instead, it says that a law will be enacted, which has not happened so far. So the way the Parliament is currently exercising its jurisdiction does not have any legal basis. There is no legitimacy to anything that it has done.
But the constitution does mandate parliamentary confirmation for certain constitutional bodies.
It does not say anything about a confirmation hearing. There is a difference in terminology. This is not similar to the US where there is a senate hearing for judges recommended by the President. Our interim constitution only says that the Parliament can conduct hearings in the context of all political appointees in constitutional bodies. Apparently, the Parliament should have given effect to legislation on this regard and worked out how this should be pursued. So the provision is very clear and nowhere does it state that the Parliament can make remarks on recommended judges and undo the recommendations of the JC.
Can you elaborate on the problems with the way the Parliament is doing things?
While enacting the internal rules of procedure of the Parliament, it created two substantial provisions—that it can reject the recommendations made and that this matter will be decided upon by a two-thirds majority. These are entirely new requirements. These are not procedural matters but substantial constitutional rules. If this is what needs to be done, then the constitution should be amended. So irrespective of the fact that we have problems with some of the judges who have been recommended, this way the Parliament is trying to correct it is a very offending process. It does not help the independence of the judiciary. Rather than empowering the JC or creating additional institutions within it to make the appointment process more transparent so that only those properly trained and with the necessary integrity and character are appointed, the Parliament started conducting some sort of trial. They are not trying to reform the process. Rather, they are overturning the appointment. So the objective of the parliamentary hearing, interpreted this way, will be to empower the government to take judicial decisions through its own mercenary judges.
You say that the Parliament’s recent steps are unconstitutional but doesn’t the JC’s controversial nominations shed light on problems with the Council too?
Some of these judges have been implicated for improper conduct, including compromising their judicial decision-making powers. These issues should be taken up by the JC. The Council has all the powers, even the power to conduct hearings if it desires. So why is the Parliament not insisting that the Council conduct such hearings? Why is it not saying that upon review of the procedure, it found that there were certain faults and that certain compromises had been made? They could have sent such concerns to the JC by way of recommendation or if necessary, ask the government to change the law or propose another legislation. In any case, it should not transfer the particular powers given to the JC to itself, whether by a two-thirds majority or by unanimity. Even if unanimous, as long as this is the constitution we have, the Parliament does not have the powers it is exercising now.
What we have witnessed in the last seven to eight years is that the whole idea of separation of powers has been muddled. There is no clear distinction, so much so that executive authority has gradually been transferred to unelected institutions.
I think that’s true. When elected representatives do not perform well while exercising their democratic powers, this sort of tendency arises. In many developing countries, the people rely more on the judiciary than on elected representatives because experience shows that when judges are empowered, they are less dangerous to democracy than politicians. When you talk of restraining power in the scheme of constitutionalism, it is important to have a check on elected representatives. These checks do not work unless the people doing the checking are capable and the media is powerful and independent. Some scholars think that the judiciary should exercise self-restraint and only settle disputes without influencing political agendas. But we cannot say that giving power to the JC is antagonistic to the power of the Parliament. After all, the JC is not elected by unelected people. The law minister is part of the JC and he represents the government—the elected power of the country. Similarly, the government has its own appointees and two other appointees are people are politically known to the government. They are there to serve as checks to the decision made by the Chief Justice, which they have so far not done. Similarly, we have another Supreme Court judge who helps the Chief Justice make a decision on potential appointees. This system is not authoritarian and orthodox.
How will the partisan positions taken by the parties in Parliament on appointing judges affect the judiciary?
Irrespective of whether the recent list of recommended judges is confirmed or not, the worst damage has already been done to the Supreme Court. That is why I have been saying that this incident is being modeled in such a way that showing that most of the people who have been recommended are not competent directs the gun towards the Supreme Court. It has affected the overall status of the apex court without changing the constitution. Now the Court will have to look at the Parliament, what sort of bipartisan politics there are, worry whether the government will be supportive of its role and make decisions by making political calculations not based on merit.
How will this affect constitution writing?
In Nepal, mostly the left forces—though there are some opposing voices within the CPN-UML—are united in their opinion that judicial powers, as far as appointment of the judges and disciplinary action against them is concerned, should be left to the parliamentary committee. The Maoists have been championing this cause. So the opposition forces will try to make sure that there is a right case for such a provision, even while drafting the constitution. People will argue that the same system should be written in the new constitution. It will not help democracy. It is a very dangerous orientation.
So does this issue come down to a debate about parliamentary supremacy and constitutional supremacy?
I think parliamentary supremacy has been the standard notion, but within the confines of the constitutional law. The Parliament is supreme within the range of authorities created by the constitution but the supremacy of the constitution is fundamental. The constitution, as it stands now, treats judiciary as one of its engrained strengths. When you take away judicial powers by way of JC appointments, then the parliamentary hearing will take away those powers and transfer it to the PHSC. So the original balance of power has been affected.