We can’t afford to lose judiciary’s independence at a time when all other institutions have been compromised

Nepal’s Supreme Court has stood firm in several critical junctures in recent history. The roots of that institution have now been shaken to the core.

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Mandira Sharma

  • Read Time 5 min.

The current debacle in Nepal’s judiciary is unfortunate. Nepal’s Supreme Court has been the institution protecting human rights in the country, having made decisions that have far-reaching implications in promoting rule of law and human rights. I have been monitoring the works of the Supreme Court for the past several years and it is a pity to behold what is happening in the judiciary at the moment. If the debacle is not resolved properly, it will undermine the SC’s independence and integrity, leading to severe implications in protection and promotion of human rights and rule of law. And every citizen will have to bear the price.

We cannot afford to lose the judiciary’s independence at a time when all other institutions have been compromised. Many institutions including the constitutional bodies have been alleged to have been subject to political patronage and have lost public confidence. In such a situation, the supremacy of the law and the independence, and integrity of the judiciary is crucial. We have witnessed how despite the problems that Nepal had in the legislature, executive, and other constitutional bodies, the Supreme Court was at least standing firm in terms of upholding the rule of law in critical moments of history. We need to have a coordinated effort in upholding the integrity of the judiciary, an organ that protects and ensures human rights and rule of law independently and impartially  as envisioned by Nepal’s Constitution.

In order to enable the Supreme Court and the judiciary at large to deliver constitutional mandates, it’s important to respect the principle of separation of powers and checks and balances.

Investigate the allegations

The allegations against the incumbent Chief Justice (CJ), which are now the sources of the crisis that the Supreme Court is facing, are serious. There are several allegations, both inside and outside the judiciary, that the CJ is involved in corruption, including “bench shopping” that involves the formation and selection of benches for particular interest. He is also alleged to have bargained with the executive to have his nominees in the constitutional bodies taking the advantage of him being the member of the Constitutional Council that recently appointed members for the constitutional bodies. Although these appointments to the constitutional bodies have been challenged in the Supreme Court, it is alleged that he is deliberately not putting those writs in the hearing list. It is alleged that he has decided certain cases against prevailing legal principles.  The media has highlighted more than 35 such cases where the CJ is alleged to have been taking benefits. Lately, the media has been widely reporting how he partnered with the executive branch on appointments for his relative in a ministerial position. These are all serious allegations and they need to be investigated properly, thoroughly, independently, and transparently.

Such an investigation is imperative to retain the public confidence in the judiciary. I think if such allegations were levelled against a CJ in other democracies—if 19 out of 20 judges in the Supreme Court allege the CJ being involved in malpractices and boycott the bench—that would trigger an immediate investigation. To maintain the integrity of the post of the CJ and the judiciary, he should step down and pave the ground for an investigation.

Unfortunately, in Nepal, the standards have been set so low in all institutions including constitutional bodies that no one actually feels any sense of accountability to put pressure on the suspect to clear the ground for an impartial investigation. If the allegations are false and fabricated, the CJ should, of course, get a clean chit. But there must be a thorough investigation. That should be the bottom line.

If the allegations are false and fabricated, the Chief Justice should get a clean chit. But there must be a thorough investigation. That is the bottom line.

The International Commission of Justice or we, as human rights defenders, generally don’t advocate for impeachment against any CJs or any judges. We believe in the independence of the judiciary. In some other contexts, we have seen impeachment being used as a political tool to weaken the judiciary and threaten judges. Unfortunately, in the context of Nepal, there are no mechanisms to thoroughly investigate the allegations against the CJ as faced today. An investigation against the CJ seems possible only after filing an impeachment motion. Once one-fourth parliamentarians file an impeachment motion, there will be a possibility of setting up a committee by the parliament for investigation. That would determine whether or not there are sufficient grounds to impeach the CJ.

What we have to bear in mind is that whatever is happening in the judiciary is the result of the lack of political will to have overall reforms that Nepal needs for consolidating peace, democracy, and rule of law. Nepal’s political actors have been promoting impunity for short-term political gain. Many institutions’ independence has been attacked through political interference and rule of law is being defied posing serious risk to sustainable peace and development. The crisis in the judiciary today is the result of political parties’ short-slightness and their efforts to weaken the judiciary by interfering in appointments and promotions of judges. This explains why no political party seems to be bothered to address the crisis in a way that restores the independence and integrity of the judiciary.

Legal practitioners have been staging a sit-in at the main entrance of the SC for the past few days. (Photo: NL Today)

I would think that, if political parties want, this crisis could be an opportunity not only to initiate reforms of the judiciary but also to gain public confidence in the legislature. If one-fourth of the parliamentarians across party lines file a motion, that would pave the ground for an impeachment recommendation to do a thorough and impartial investigation to recommend whether or not to impeach the CJ. This could also send a strong message that the politicians do care about the independence of the judiciary and that it is possible to conduct an investigation impartially, and that parliament is capable of doing this.

The main problem, however, is that we always think of an immediate recourse to a situation, without considering the longer-term impact. Nepal’s judiciary needs reforms, which have been identified by the committee that was set up by the Supreme Court itself. It is imperative that the recommendations of that committee are implemented. The Supreme Court has to make a time-bound plan for the implementation of the recommendations geared towards the reform of judiciary and the government should support that.

Whatever is happening in the judiciary is the result of the lack of political will to have overall reforms that Nepal needs for consolidating peace, democracy, and rule of law. Nepal’s political actors have been promoting impunity for short-term political gain.

We have issues in the legal profession as well. There are allegations of lawyers being ‘middle men’ facilitating corruption and the Bar Council not being able to investigate any allegations against those lawyers. However, the crisis today is caused by a series of allegations against the CJ and the entire legal community standing against the CJ boycotting the bench. Thus, it is worth repeating that the first step towards the resolution of the present crisis is through an investigation into the allegations levelled against the CJ.

What can be done?

To resolve the problems and to reform the judiciary, civil society, including the Bar, also has a critical role to play. It can bring forward the evidence that exists to give credence to allegations levelled against the CJ. We should not tolerate any kind of malpractice in any of the institutions, much less in the judiciary. Civil society should proactively raise its voice. It always has a reactive approach in response to a crisis like this, while it should instead adopt a proactive one. It should create sustained pressure for reforms in the judiciary and the legal profession.

International human rights organizations that have been monitoring the situation of rule of law have been concerned about the situation in Nepal. The International Commission of Jurists, Human Rights Watch and Amnesty International have jointly issued a statement, expressing their concern about the crisis the judiciary is facing. One of the demands that have been made is to have a thorough, impartial investigation without any compromise. Threat to rule of law anywhere is the threat to rule of law everywhere as it concerns the very core value of protection of human rights and right to effective remedies.

Mandira Sharma is Senior International Legal Advisor at the International Commission of Jurists.

(The article is based on a conversation with Nepal Live Today’s Nishan Khatiwada.)