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Judge for yourself

Bipin Adhikari
The Kathmandu Post
September 10, 2009
From: constituentassembly.blogspot.com

"In fact, the CA Committee on Judicial System has not spent its energy on how justice can be made accessible to all the deprived and downtrodden people of this country, which is the major issue of the day. It has rather focused on how judicial power can be belittled, and the doctrine of the separation of powers to protect the liberty of the common people be kept at the mercy of the majority party in the legislature."

While the Constituent Assembly (CA) is losing its sense of direction, the Committee on Judicial System (CJS) has now proposed a strange concept paper and preliminary draft on the form and nature of the judiciary under the new constitution.

Submitted for discussion in the full house, this proposal is yet another example of how vulnerable Nepal has become as a country adhering to the principles of the rule of law and independence of the judiciary in the hands of illiberal constitution makers.

Although the committee proposal has not been unanimously decided, and the full house of the CA can still reshape it, the fact that some political forces at the committee level can go to this extent is ever disturbing. Led by a Maoist member, Prabhu Shah, the Committee on Judicial System enables the appointment of the chief justice who is not a sitting Supreme Court (SC) justice. Even knowing that this provision could have lethal use in the prevailing political culture, some Madhesi parties have joined the Maoists to allow them to form a majority. This provision has been introduced undoubtedly to break with the past, resize the concept of the independence of the judiciary, and create a judiciary committed to the government.

The provision of direct appointment of the chief justice from outside the Supreme Court is not problematic per se, but it must be seen among other changes to be put in place. The proposal also provides for a committee within the legislature to appoint judges and take action against them when they breach justice.

Details are not provided, but it is this committee which will have the power to interpret the constitution, where necessary, thereby stripping the Supreme Court of its role as the guardian of the constitution. Once passed, it will no longer be the Supreme Court which will have the final word on what the constitution says, or does not say, on a particular constitutional issue, and leave the responsibility to the legislature.

But that does not seem to be enough, though. Reforms being contemplated by the Committee on Judicial System make explicit that the legislature will have complete jurisdiction to decide issues involving the position and powers of the head of state, the chief executive of the country, and officials to be elected by the legislature (like the speaker, deputy speaker, committee chairs and so on).

All political issues, even if they involve legal constitutional questions, and issues of laws contradicting the constitution, will be taken care of by the legislature itself in the future. Besides, a special court could be created by the legislature, whenever there is a vacancy, to take action against judges (should they breach the trust of the legislature), and give the final verdict, with no scope for an independent judicial review.

These changes are coming against a background of Maoist allegations that the judiciary and the Nepal Army, two stable state apparatus in Nepal still not shattered by belligerent winds, must be overcome to establish a genuine "people's democracy" in the country. An independent judiciary, which does not want to be guided by the government, and the national army, which is said to be firm on certain national security issues, do not help the transition towards an authoritarian regime.

In fact, the committee has not spent its energy on how justice can be made accessible to all the deprived and downtrodden people of this country, which is the major issue of the day. It has rather focused on how judicial power can be belittled, and the doctrine of the separation of powers to protect the liberty of the common people be kept at the mercy of the majority party in the legislature.

The template for this change is without doubt not democratic. Even in China, wherefrom these constitutional arrangements are said to have been imitated, things have been changing. In the past 30 years, owing to the tragic experience of the Cultural Revolution and the urge for economic development, China attached great importance to the independence of the judiciary and reform of its legal system. It is trying to catch up with other technically advanced nations in the world and has begun to actively co-exist in the global economic system.

Every modern Chinese believes that a credible judiciary and legal system can provide a solid base for developing a market economy. Economic construction replaced class struggle as the basic task of the Chinese Communist Party. Its growing legal system has quickly become a new means relied on both by this party for its governance and by Chinese citizens as a safeguard for their increasing individual rights.

Under economic reform and an open-door policy, an increase in individual autonomy and contacts with the outside world has further raised the expectations of the people for more protection of their basic rights. As a result, legal reform has become an urgent task to resolve the rising conflicts and expectations in society. To meet these expectations of the citizenry, China has even started ushering in periodic plans to modernize the judiciary, comply with international standards and rationalize the legal system.

Much of the study of their legal reform efforts concerns the struggle to adapt international norms to local conditions. As a huge country with a fast growing economy and fears of internal instability and external security threats, Chinese policymakers are careful not to jump on everywhere without stabilizing changes. Although not without limitations, the direction is certainly positive.

Even now, the structure of China's government, especially the judiciary, is very peculiar. It is one of the five organs of the National People's Congress. There is no special status given to it by the constitution. The other four organs are the president of China, the State Council, the Central Military Commission and the Supreme People's "Procuratorate". The Communist Party of China still prevails everywhere. In this environment, the judiciary is yet to emerge as a fully independent institution — based on the doctrine of separation of powers.

Yet, China is certainly trying to emerge from the rubbish of the past. It is so strange that the Maoists of Nepal are still attracted to people's courts which existed in China from 1949-78 as component parts of the corresponding government.

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