Independence of Judiciary: Under Threat, Again
"As there is a vacancy for over three dozen judges in Supreme Court, Appellate Courts and District Courts, Maoists appear to be in a rush to fill them with people close to them. However, Maoist considers the presence of senior advocate Motikazi Sthapit, as a member at Judicial Council (JC) - as its main hurdle in achieving this job. Thus, the Maoists have pressured him to resign. Since there is a clear constitutional provision regarding the tenure of JC member Sthapit, Maoists cannot remove him through any executive order. At a time when country's almost all institutions, which were built over last five decades of democratic experiments, have already been shaken badly one after another in the last two and a half years of Loktantra, Maoists, who virtually destroyed developmental infrastructures, grass root democratic institutions by committing number of atrocities against the local representatives, are now finally in the process of dismantling the values and ideals of independence of judiciary - the last safeguard for individual freedom and liberal democracy. If Maoists are allowed to have free hand in JC, it will hurt the independence of judiciary, which is going to be a major setback to liberal democracy"
"In the changed political context, Motikazi Sthapit, member of Judicial Council, should resign respecting the mandate given by people to us," Minister for Law, Justice and Constituent Assembly Affairs Dev Gurung told SPOTLIGHT. "I don't understand why our friends in opposition and some lawyers affiliated to Nepali Congress are blowing this simple issue as a major crisis," said minister Gurung.
For minister Gurung, who came to power by committing all kinds of atrocities and violating all civilized manners, constitution, precedence and law do not count much. As he often reportedly said he came to power with certain objective: to destroy all the state institutions which they failed to accomplish during their twelve years long violent struggle.
"Because of the row in the JC, we are unable to appoint judges in vacant positions in the various courts," said Gurung."We will take necessary decision soon to settle the controversy. "Gurung, however, did not clarify what the decisions will be. It is natural for minister Gurung and his comrades to impose their will through coercion or force rather than following the constitutional ways.
What Is Judicial Council?
The Interim Constitution has created a Judicial Council as an exclusive authority for dealing with some of the most important issues relating to an independent judiciary. This is very unique system of Nepal. The framer of the constitution created this body hoping that the process of nomination for appointment of judges must bolster the independent and impartial image of the judiciary and not serve to undermine it.
The council was given a wide range of power to allow it to keep the moral standards of the judiciary high and maintain the dignity of judicial independence. Meetings of the council are convened by the chief justice either on his own initiative or at the request of at least two members of the council to discuss the agenda prepared by them. The provisions make the presence of the law minister on the council largely ceremonial since he can always be outvoted by the three Supreme Court judges on the council.
Renowned senior advocate and former attorney general Sthapit was appointed one and half years ago in accordance with the 113(1) (d) of Interim Constitution as a jurist by prime minister for the fixed tenure of four years. There is a constitutional provision that such person may be removed from office on the same grounds and in the same manner as provided for the removal of a judge of the Supreme Court.
The fifth amendment of interim constitution has further strengthened the JC member. When Sthapit was appointed by prime minister, he also exercised the power of head of the state including receiving credentials of ambassadors, appointment of ambassadors and members of constitutional bodies. After the fifth amendment of interim constitution in June, a member of judicial council is now appointed by president under recommendation of prime minister.
"The constitution has not given any authority to anybody even to president or prime minister to ask for his resignation. How can a minister, who is just an ex-officio member, ask for his resignation? This position was created to guarantee the independence of judiciary. Since the article 113 (2) fixes the tenure of member of council and 113 (3) has provision for removal, it is the only two third majority of members of legislative parliament who can remove him. Maoists just want to appoint their own ideologically oriented followers to destroy the independence of judiciary," said advocate Madhav Kumar Basnet.
Other independent lawyers, too, agree with this argument. "As the institution of Judicial Council is created by Constitution, there are constitutional provisions for appointment, tenure and removal of the members. Among five members of council three are ex-officio members who do not have fixed tenure but two members have fixed tenure of four years," said constitutional lawyer Bhimarjun Acharya. "Fundamental question regarding this debate, how can an ex-officio member of the council demand resignation of a person - whose tenure is fixed by constitution? This provision has been placed there to make judiciary independent. There is no role of executive in appointment of judges as judges are appointed under the nomination of Judicial Council."
As Maoist minister Gurung is holding a long list of newly aspirant pro-Maoist cadres for the position of judges, he requires majority in the council. If minister Gurung is able to appoint his own henchman in the position of Motikazi Sthapit, he can manipulate the remaining member in the fold to take the decision on the basis of majority.
"The stand taken by Motikazi Sthapit is not for his personal benefit but guided by his commitment to the constitution for which he has taken oath," said Acharya. "If he resigns, other judges, too, will be coerced to do so. The most important thing at this crucial juncture is the question of safeguarding the independence of judiciary."
Although Sthapit's issue was raised in the Legislative Parliament by the leading member Radheshyam Adhikary and others, Minister Gurung continues putting all kinds of mental pressure upon Sthapit to resign.
"As he is in the last leg of his career, Motikazi Sthapit as an individual has nothing to lose even if he is forced to resign but his resignation will harm the independence of judiciary," said Basnet.
Lawyers argue that the issue raised now, therefore, that the person appointed by a prime minister of a party has to immediately resign after the change of government is a notion directly against the concept of judicial independence.
"The supremacy of party in the appointment process against the concept of autonomous recommendatory body does not respect the very fundamental concept of independence of judiciary. Therefore, the key issue now reflects the direct ideological concept- classical communism vis-a-vis democratic norms respecting the independent of judiciary. It has to be remembered that the controversy of constitutional incorporation of parliamentary hearing has a remote linkage with the notion of judicial independence maintained under appointment process through the recommendation of an independent and autonomous entity like judicial council, which has the representation of parliamentary members and the government through the minister of law and justice," said a lawyer.
Such arguments were raised in a recently filed petition in the supreme court by amicus curie while the hearing was conducted by the Supreme Court against incorporation of parliamentary hearing through the constitutional amendments and references were made about similar arguments presented by the Canadian and Australian jurists against proposed changes in their judicial appointment process also.
"Similar controversy has arisen with regard to appointment process in Canada and Australia also. The jurists of these countries have strongly resisted against introduction of parliamentary hearing in the appointment process under an American model simply because the process adopted to appoint through an independent commission, in itself, incorporates parliamentary representations also, which American mode does not," said Dr. Surya Dhungel, a constitutional expert.
Means for Removal
"If the Maoist minister wants Sthapit's removal, why does he not table the motion for impeachment? The resignation is not a voluntary thing that one can coerce someone to do whose tenure is already fixed by constitution," said a legal analyst.
Once a person is appointed, his position is guaranteed by constitution not by anybody's whim. Even with the change of PM, it cannot affect the person. "It is surprising that at this controversial period, a prime minister wanted to see a person who is strongly taking a position based on inherent constitutional responsibilities vested on him."
Surprisingly, nobody is questioning the justification and legitimacy of mysterious call from the prime minister who never tried to see him before this incident took place. Should prime minister call him? Nobody has challenged the prime minister.
If the government or prime minister is seriously considering removing him, he should convince the legislative parliament on the motion for impeachment.
Question of Sthapit
Senior advocate Sthapit had been attorney general during three prime ministers Krishna Prasad Bhattarai, Girija Prasad Koirala and Sher Bahadur Deuba after the political change of 1990. As attorney general does not have any fixed tenure, Sthapit resigned instantly following the change in the government. But, his membership in Judicial Council has fixed tenure, therefore, he has taken a constitutional stand.
"His stand is constitutionally correct. But he is bound to meet prime minister if he invites him for discussion," said Agni Kharel.
Others differ. "Since Sthapit's position is created by constitution, it is against the spirit of constitution to go to prime minister's residence to listen to his sermon," said advocate Basnet. "To safeguard the constitution, he is taking right stand."
As the dispute surfaced, Maoist minister is pressuring Sthapit to meet the prime minister.
At this controversial juncture, Sthapit's visit to meet prime minister could be taken as begging for his position. If PM asks him to favor his nominee, what would he do? "His stand not to meet the prime minister is constitutionally correct. Once he meets prime minister, his independence will diminish," said advocate Acharya.
Maoists argue that Sthapit needs to resign on the ground of change of the government. "Sthapit was appointed by then prime minister Girija Prasad Koirala and he should resign following the change of government."The question of tenure is not applicable since he is appointed on political ground," said Raman Shrestha, secretary of Nepal Bar Association.
"There is no justification to make such a hue and cry. Sthapit should have resigned quietly paving the way for new appointment," said Maoist CA member and advocate Khim Lal Devkota. "We will take necessary step. Even if it requires tabling of the impeachment motion, we can table the motion for impeachment."
About a dozen lawyers with Maoist affiliation are now trying to create the environment that JC member is a political appointee. "Since Motikazi Sthapit was appointed on the recommendation of prime minister, he must resign in the changed context," said advocate Mukti Pradhan. Maoist lawyers seem to be preparing to force Sthapit to resign.
"Since he was appointed by previous prime minister, Sthapit should go.Along with constitutional, there also involves political questions," said Raman Shrestha, general secretary of NBA. Dominated by followers of CPN-Maoist, Nepal Bar Association is yet to pronounce its official stand. When former king took similar stand, they had rushed to condemn him.
Although the debate has already surfaced in public, the NBA has not made its stand clear: whether it stands in favor of government or for independence of judiciary. Bar president Bishwokanta Mainali's stand seems to be neutral but secretary of NBA Raman Shrestha, who is a Maoist cadre, is supporting the minister.
"The judiciary of Nepal is grappling with the issue of independence ever since the 1990 Constitution was pulled down. This is not the first time that this issue has come up with all the bitterness. Institutionally, it is difficult for the judiciary in the prevailing situation to remain impartial, given the overbearing political environment, and the ongoing acculturation. In this situation, it is not easy for the judiciary to make its decisions accepted by the parties and the public, and stand free from undue interference. The issue of undue interference is subtle and nuanced," said Dr Bipin Adhikari, constitutional expert "The case of Sthapit falls under this category. The government has no compelling reasons, which can persuade a senior lawyer like Sthapit to tender his resignation in the interest of the larger public good. The intention of the government is loud and clear: it wants an indoctrinated judiciary."
The ongoing attempt against senior advocate and member of Judicial Council Sthapit by Maoist minister is not a personal issue but something that can have a long term implications on independent of judiciary. If Sthapit is compelled to resign under coercion, many other judges in the courts may have to face similar situation.
Law On Judicial Council
Article 113 (1): There shall be judicial council to make recommendations and give advice in accordance with this constitution concerning the appointment of, transfer of, disciplinary action against, and dismissal of judges, and other matters relating to judicial administration, which shall consist of the following as the chairpersons and members:
a) The Chief Justice - Chairperson
b) The minister of justice - member
c) Senior-most judge of the Supreme Court -Member
d) A person to be appointed by president under the recommendation of prime minister from among jurists (Fifth amendment)
e) A senior advocate, or an advocate who has at least twenty years experience to be appointed by the chief justice on the recommendation of the Nepal Bar Association
(2) The term of office of the members referred to in sub-clauses (d) and (e) of clause (1) shall be four years and their remuneration and privileges shall be the same as those of a judge of the Supreme court.
(3) The members referred to in sub-clause (d) and (e) of clause (1) above, may be removed from office on the same grounds and in the same manner as provided for the removal of judge of the Supreme Court.
The whole concept of constituting judicial council to recommend the name of judges is mainly to ensure the independence of judges in the appointment process. Once a council member has been appointed, no matter whether he/she is appointed by prime minister or anyone else, his tenure is guaranteed by the constitution itself so that the member does not have to be in any form influenced by person who appoints him. So he/she is made free from the influxes of person who appoint him.