For the record: Interim Constitution will be promulgated tomorrow but judges of Supreme Court will not be very happy. A report by Conflict Study Center
The pressure from the House and street culminated in a meeting of the Seven Party Alliance-Maoist (SPAM) on January 8, 2007 resulting in the decision to proclaim the Interim Constitution (IC). Three proposals were adopted. The first was to proclaim the IC and ratify the Interim Legislature effective January 15, 2007. The second was to appeal to all political parties, civil society and the masses to proclaim free and fair Constituent Assembly elections to be held in mid-June, and to form all-party committees for collecting the voter’s list, ensuring the distribution of citizenship, and maintaining peace and security. The third was to declare that all problems of people be addressed exclusively by the New Constitution and New State of Order after CA election. The management of arms and armies by the UN mission will also commence on January 15, 2007. Although the Draft if the IC has not been made public but media sources have printed the full text and it has been widely discussed. The Judiciary has developed suggestions comprised of 14-points to revise the draft statute. Their recommendations have received no official endorsement. The recommendations, adapted from Kantipur Daily, January 7, 2007, are summarized below:
Draft Interim Constitution (December 15, 2006)
* All the incumbent Courts shall be recognized as formed by the IC upon its proclamation. Cases filed under the jurisdiction of the former shall be continued.
* The Chief Justice of the Supreme Court shall be appointed by the PM upon the recommendation of the Constitutional Council. The Chief Justice upon the recommendation of the Judicial Council shall appoint Judges.
* A Judicial Council shall be formed to appoint, transfer, discipline, fire and administer the courts consisting of (i) Chief Justice as chair, and (ii) Minister of Law, and (iii) Senior advocate on recommendation of BAR, (iv) Appointed by PM and (v) Senior most judge of the Supreme Court.
* The Council of Misisters shall have the power to stall, change, reduce or revoke any verdict made by any court, quasi-judiciary, military court, special court, or administrative body.
* Judges refusing to take oath as per the IC shall be terminated.
Recommendations from Judiciary (January 8, 2007)
* In the Preamble of the Draft IC, full commitment to Independent Judiciary is imperative for Rule of Law and a Civilized Society has been stated. Declaration of Independency of Judiciary is not enough; rather has to make it operational by providing necessary infrastructure and by allowing the legal workers to work in an environment that is free without fear. The following proviso of Draft IC are recommended for revision that consist of clauses that hinder the values and principles of independency of the Judiciary in relation to Interim Courts and Judges and their appointments:
* Under the heading “Judicial rights to be used by Courts”, it states that the Judiciary will be committed to the IC’s adoption of the principle of independence and valuing democracy in the spirit of Popular Movement II. Using the term Popular Movement implies a political stand, whereas the constitution is a legal document and ought not refer to the Popular Movement. Commitment to the constitution is sufficient.
* Under the heading “Responsibilities of the Judges”, the responsibility to provide an effective judicial administration rests with the Chief Justice (CJ). For that purpose he/she would issue directives to the Supreme and subordinate Courts. Although the Judicial Administration shall perform as per the Constitution, the Administrative Leadership shall be held by the CJ, even though the CJ and other judges shall be independent in legal court proceedings. Infringing on the independent discretion of judges in the form of directions from the CJ (except those of an administrative nature) ought not be condoned.
* Under the heading “Appointment and Qualifications of Supreme Court Judges”, it is stipulated that the PM appoint the CJ on the recommendation of Constitutional Council. For appropriate selection of Chief Justice, at least three judges of the Supreme Court should be included in the Constitutional Council. As the PM is the head of the executive, for the PM to appoint the Head of Judiciary represents a conflict of interest. If the appointment is prescribed in relation to the present problem of the Head of the State, it is better to have the CJ appointed by Constitutional Council.
* In the provision “to direct CJ or any Judges to perform other positions or tasks”, it stipulates that the government could direct the CJ and other judges to take on other tasks in consultation with the Judicial Council. For the CJ to do so represents a conflict of interest and the government could punish the judges for actions deemed against its interest, potentially compromising the independence of the Judiciary.
* The clause stating “individuals who have performed as CJ and Judges would not be liable for appointment to any public service”’ deprives former judges from involvement in nation building. There are many nation building services in addition to the Human Rights Commission. All judges are entitled to political participation, except those who misused power while on judicial positions.
* Judges, who are national human resources, ought not be excluded from receiving retirement benefits under the current proposal. Those who have served should be eligible for social security, except in cases of disqualifications.
* The Judicial Council should be increased by additional two Judges totaling seven members because it would be against the Independency of Judiciary.
* The provision for the annual report of the Supreme Court to be submitted to the PM who would present it to the Parliament violates the Theory of Independency of Judiciary. The SC could publish its annual report.
* The Supreme Court Judges are bound to take oath after promulgation of the IC, which should be applicable to all constitutional bodies. The term “as decided by the government” should be replaced with “as per law”.
* Reform of the Judiciary is the responsibility of the Judicial Council and the rights and roles of the Judicial Council to appoint and management of Judiciary should be clearly stated.
The Comprehensive Peace Accord between the Government of Nepal (GoN) and the Maoists provides for constitutional checks and balances and an independent judiciary. Similarly, the Political Agreement promotes norms and values that embrace the concept of an independent judiciary intended to ensure that the judiciary reflects the aspirations of the people as embodied in the People’s Movement.
To date, the proposed drafts of the key political parties with the exception of the CPN (Maoist) have failed to seriously address the Judiciary. (i.e., formation of the Interim Judiciary consisting of a Supreme Court, an Appellate and District Courts, and the establishment of People’s Courts in rural areas and the justices and judges appointed by Interim Legislature or some other relevant representative body)
The PM has not granted an audience to the Judges so that the recommendations have not been handed over to the government. In the past, the PM stated that he was not in favor of an autocratic PM and stood ready to reduce the PM’s powers bowing to pressures from BAR, media, civil society, etc. No political party except the Nepal Majdoor Kisan Party suggested that the powers granted to the PM were excessive. But, subsequent to his talk with Prachanda on January 7, 2007, the PM only agreed only to editorial amendments. He declined to make content changes. There is no provision for the resignation of the PM. The CPN (UML) asked to discuss the draft for several days prior to making decisions whereas the Maoists urged that the decision be made and proclaimed on the same day tabled at the House.
Influential members of SPAM do not support judicial independence. The Minister of Home Affairs, Krishna Prasad Sitaula (NC,) holds that the responsibility for finalizing of the draft of the IC rests on Parliament and the political parties and they are the ones responsible for amending it. The suggestion that the plenary meeting of the Supreme Court should offer amendments to the a Statute that has not been approved by the Cabinet or proclaimed by the Parliament is ludicrous according to the Coordinator of the Peace Secretariat, Ram Chandra Paudel (NC). Secretariat Member, Jhalanath Khanal (UML) notes that a single Judge can propose his/her idea but the institutional decision by the Judiciary is unacceptable, which represents the politicalization of the judiciary. Dr. Baburam Bhattarai (Maoist) agrees with Khanal. The proposal of CPN (Maoist) called for the reappointment of all the judges, not only those willing to take a government oath.
Causes and Effects
Prior to adoption of the Statute, a “cold war” has broken out between the judiciary and political parties resulting in a bottleneck to establishing the institution and strengthening, protection and promotion democracy. Many of the issues raised by the Judiciary are of concern, but the ‘cold war’ demonstrates the constitutional, political and administrative crisis in Nepal. If the provision remains as it is, the situation will be critical in areas such as citizens’ rights to life, security, liberty and dignity as a Judiciary under the Executive is not independent. Parallel problems arise in addressing the rights of the victims to a fair trial. The provision for the Judiciary to submit an annual report to the PM (Executive), which would then be forwarded to Parliament by the Supreme Court places the Judiciary in a position subordinate to the Executive, and legislature. The appointment of the Chief Justice by the PM makes his or her position a puppet to the PM. If the Draft Statute is adopted as is and Prachanda becomes the PM, the other political parties will begin exerting pressure to curtail his power.
Why is the rift between the Executive and the Judiciary widening?
* The fact that Chief Justice Biswonath Prasad Upadhyaya took two opposing verdicts on similar cases (on Dissolution of the Parliament that was granted when proposed by Girija Prasad Koirala but refused when proposed by his successor, Manamohan Adhikary) portends ill for an independent judiciary.
* During the absolute regime of King Gyanendra, Chief Justice Hari Prasad Adhikari supported the King at the International Conference of Chief Justices saying that Nepal’s problems reflect a failure of the political parties to understand their roles.
* Nepali people have little confidence in obtaining fair trails in the Courts, as reflected in the folk saying, “Nepalko kanoon daibale janoon” (only God knows the laws of Nepal). Historically, money, muscle and mafia (3Ms) have triumphed over fair trials (Mind) and have influenced verdicts of different Courts. For example, the case of Kedar Prasad Giri, this resulted in the provision of personal security guards to Judges.
On November 30, 2006, a man attacked the seniormost judge of the Supreme Court (SC), Justice Kedar Prasad Giri, at his house. The assailant has been identified as Prabhat Kumar Gupta of Birgunj. Gupta gained entry to Justice Giri’s house saying he wanted to deliver him a letter. However, when Giri appeared, he attacked him. Giri sustained injuries on his hand and face while fending off the attack. Gupta was overpowered by the family of the judge and handed over to the police. Gupta had confessed before to the police that he wanted to kill the judge. He told them that he had downloaded the photographs of the SC and Special Court judges from a website. In his statement to the police, Gupta said he had lost a case in the SC involving a dispute with a tenant and wanted to put pressure the judges.
Gupta told the Kantipur Daily was that he visited Giri to talk about the case, not to kill him. Giri’s relatives promised him a favorable verdict in return for 50,000 NRs. He went to the Judges home with a cassette recorder, which Giri saw him turn off. Giri’s family seized the recorder, beat him and handed him over to the police, Giri’s son happens to be a DSP.
* There have been many instances where Judges have been caught red-handed taking bribes from clients with no consequences. It is little wonder the people have no confidence in a fair judicial system.
The Judges themselves are clamoring for independence. That is their responsibility to provide fair trials. And, of course, they should be free to function in a democratic manner.
Recommendations
Separation of Power: The Theory of Separation of Power awards rights to different segments of the State and controls and balances those rights. Adopting the Theory of Separation of Power as a fundamental democratic principle guarantees personal freedom and fair trials even in cases against the State. The Legislature formulates laws, whereas the Executive implements them while the Judiciary explains and protects them. If there is no overlap, the three main organs of the State function smoothly without contradiction, promoting stability. Separation also contributes affordability and accessibility to justice, appointments to qualified and unbiased judges, transparency, and the expectation that there will be no corruption in the Judiciary. The concept of rule of law cannot be maintained effectively if the Judiciary becomes a target of politics.
Genuine Compliance to Orientation: The Judges of Nepal have studied the “Democratic Philosophy” of the Panchayat Oligarchic Partyless Regime and have practiced that feudal system. The new Judiciary’s attitude and behavior must transcend and transform the feudal system in the context of the values and cultures of liberalism, democratic practices and human rights.
Restructuration to Judiciary: The Nepal’s Judiciary is based on an old traditional structure. The feudal and patriarchic mindset plays a decisive role in the relationships between senior and junior judges, judges and advocates, judges and the people, and advocates and their clients. Modern justice must not be delayed.
Democratic Process: The Constitutional Council is prescribed by the Constitution. The Judicial Council could be prescribed by Parliament. However, consideration should be given to electing judges from amongst themselves.
Enhance Trust and Confidence: There should be checks and balances within the Judiciary that ensure fair property assessment, clean history, transparency, reconcilability and accountability, which builds the trust of commoners upon judiciary. Courts should be independent of politics.
Contributed by Dr. Bishnu Pathak and Mr. Chitra Niraula Edited by Professor Dr. Virginia E. O’Leary
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