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Professional inclusiveness is as necessary as ethnic inclusiveness

Dr Bipin Adhikari
The Kathmandu Post
March 14, 2016

Dr Bipin Adhikari

Mar 14, 2016- On March 1, the Judicial Council (JC), the body responsible for selecting judges, recommended 11 judges for the Supreme Court (SC). Speaker Onsari Gharti, however, sent back the recommendations—a decision that has given rise to a controversy. Bhadra Sharma and Shashwat Acharya spoke to Bipin Adhikari, a constitutional law expert and Dean of Kathmandu University School of Law, about the validity of the Speaker’s decision, inclusiveness in the recommended names, rift between the judiciary and Parliament and increasing politicisation in key appointments.

Can the recommendations made by the JC for the appointment of SC judges be refused by the Speaker? 

No, because there is no provision in the new constitution that allows such a move. Nor was there such a provision in the previous constitution. It is Parliament’s job — not the Speaker’s — to determine whether the nomination criteria were fulfilled. That the Speaker returned the recommendations without holding any discussion is very strange. 

The Speaker has cited two reasons for her decision—that the JC is incomplete and the Parliamentary Hearing Special Committee is yet to be formed. How do you assess these reasons?

I do not think they are sound reasons. Whether the JC is full and has acted within its jurisdiction can be challenged, but only by the relevant person at the concerned court. It was not necessary for the Speaker to consider whether the JC fulfilled due process. As far as the second reason is concerned, if any constitutional body has the jurisdiction for an action, it cannot be rejected simply because there are some problems. 

There are other constitutional bodies too. The SC, for example, cannot cite insufficient number of justices for not accepting writs. Or the Commission for the Investigation of Abuse of Authority (CIAA) cannot say it will not conduct investigations because it does not have adequate staff. All constitutional bodies have to exercise their jurisdiction. They cannot shirk their responsibilities; they must put in effort even if there are problems. 

So do you think the Speaker acted beyond her jurisdiction?

I do not question the bona fides of the Speaker; she could have had good intentions. I do not think her decision was prompted by some political motivation. Still, she does not have the constitutional right to return the recommendations of any parliamentary committee, less so on an issue like this. 

The Speaker has cited her reasons. What do you think could have been her intentions? 

There have been various comments on the names that were recommended. Questions can be raised in the court about the constitutionality of the names or the process by which they were recommended. But that is not something that falls under the jurisdiction of the Speaker. She is only a presiding officer of Parliament and her job is to facilitate its proceedings; she should let it function the way it is supposed to. She cannot make decisions on behalf of Parliament.

Questions have also been raised about the inclusiveness in the recommended names. What is your take on that?

Eleven names have been recommended this time. This is fairly a big number. It was an opportunity to make the apex court more inclusive. Members of those groups that have not been well represented under the current structure of the court could have been included. Roughly speaking, Brahmins, Chhetris, Newars and, to some extent, Madhesis have occupied the posts of justices. Representation of the Janajatis and some other groups seems low. 

Article 42 of the constitution guarantees the provision of proportional representation in the government bodies as a form of social justice. Article 16 mentions affirmative action as a way to promote equality. These articles point to the necessity of putting in efforts for inclusion. The recommended names show that there has been a lack of effort to this end. 

There is another facet to the issue of inclusion. The field of justice is not only limited to judges or lawyers. There are professors of law or bureaucrats who have served in law department. They may wish to become SC judges towards the end of their career. The apex court should have room for the country’s legal eagles. There are widespread complaints about the lack of professional inclusiveness at the court. Professional inclusiveness is as much necessary as caste or ethnic inclusiveness.

Whether the 11 judges recommended by the JC represent the entire profession of law has to be examined. 

Some of those who were involved in the drafting of the constitution have been recommended to interpret the constitution as judges. Do you see a conflict of interest in this?  

The appointment as judges of those who were involved in the constitution writing is in fact a good thing. There is no conflict of interest in that. Only when somebody benefits illegally from one’s own decision does a conflict of interest arise. Several renowned constitution-makers have been appointed as judges in other countries too.  

On the other hand, if names are recommended with a pre-conceived idea of making someone the chief justice, such as by taking into consideration the age of those recommended, that could be problematic and discriminatory. 

Are you hinting at something similar in the latest recommendations?

I am not involved in the process. 

But we have heard plenty of complaints in the past from professionals practising in this field about names being recommended based on whether one has the chance of being the chief justice one day. There have been similar complaints this time around as well. Only an insider can tell how valid the complaints are.  

Why do you think the Speaker’s decision has been so controversial? 

The provision of parliamentary hearing in the new constitution is a faulty one. In a parliamentary democracy, Parliament is under the control of the government. The day the government lacks its controlling capacity, it will be removed through a vote of no-confidence. In other words, the government is formed by the biggest party or the one that can garner majority votes. Parliament should not be involved in any aspect of appointing judges. We do not normally see such practice in parliamentary democracies. 

Where there is a presidential system and the idea of separation of power is strict, like in the US, such a provision may exist. But in a system like ours, it should not have been there. Here, people became too ambitious. There is an argument that Parliament should be sovereign. That is not correct. We have a sovereign constitution. The country runs on the basis of the supremacy of the constitution. Parliament also falls within that; it cannot bypass the principles enshrined in the constitution.  

What do you suggest is the way out of the controversy now?

We have seen Parliament interfering in many legal affairs. There is such a provision in the constitution. Had there been no such provision, this problem would not have arisen. So, it cannot be resolved through a legal or constitutional means. The head of the JC—that is the chief justice—has to demonstrate some leadership. So does the Speaker. 

The Speaker can facilitate a way out by asking the chief justice to reconsider and resend the recommendations, and then initiating the parliamentary proceedings. But if she chooses to stick to her decision, a public interest litigation has to be filed against it at the SC. That is, however, the longer route. That will also create friction between the SC and Parliament. 

Recommendations like these have generally sparked controversies in the past as well. What, in your opinion, are the reasons?

There has been a high degree of politicisation in all kinds of appointments. Take the JC for example. One member of it is nominated by the Nepal Bar Association, which is also highly politicised. Another is a law expert appointed by the government, which, obviously, is picked by the parties. They tend to reward those who are close to them. We saw how judges, after their swearing-in ceremony, ran to the CPN-UML’s office to express their gratitude. 

This time too, people are openly commenting on who among the 11 names recommended are close to the Nepali Congress or the UML. Those who have been recommended are qualified, but there are many others who are also qualified. They definitely have questions, which should be answered transparently and objectively. 

What can be done to stop or at least reduce politicisation?

The chief justice has to tell the politicians that it is his—not their—job to recommend names for judges. Their job is to hold discussions on the recommended names and approve the ones deemed unproblematic. If appointment without politicisation is made impossible, the chief justice has to tell the Speaker that there has been political pressure on him and that he wants to address the nation. 

For the first time in Nepal, a Member of Parliament and of a political party has been appointed as a judge. If tomorrow, for example, the law minister wants to be the judge at the SC, will that be allowed? Whether somebody with political interests and partisan thinking can be appointed a judge is a major question. I will not say no, but we have to be very clear about the fundamentals.


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