"Gradual Judicial Reforms Necessary"

At a time when debates are going on regarding the role of the Judicial Council to be specified in the new constitution, Member of Judicial Council UPENDRA KESHARI NEUPANE spoke to NEW SPOTLIGHT on various related issues. Excerpts:

Nov. 7, 2014, 5:45 p.m. Published in Magazine Issue: Vol: 08 No. -10 November. 7- 2014 (Kartik 21, 2071)

At a time when debates are going on in the Constituent Assembly as to whether there is the need of a Judicial Council or not, how do you justify the role of the Council in the process of appointment of judges?

Since 1990, the Judicial Council has come to be a separate constitutional body to look after the appointment and other judiciary related reforms. For the first time, the constitution of Kingdom of Nepal 1990 gave a constitutional status to this body and the Interim Constitution of Nepal 2007 continued its presence. In terms of structure, this is one of the beauties of the constitution.  When Nepal introduced the Judicial Council, only a few countries had these kinds of institutions. However, the situation is different now, and many countries see these kinds of institutions are the right way to maintain the independence of the judiciary. The question we are facing now is whether we were able to disseminate the work done by the council. People are also asking the question as to whether the work by the Judicial Council promotes independent judiciary or not. Whether judiciary is strengthened or not, frankly speaking, we need to say the Judicial Council, which came to exist 23 year ago, is more relevant now to make the judiciary independent.  

Don’t you think there is also a failure on the part of Judicial Council to disseminate its work?

Our failure is the lack of work to show to the people that the Judicial Council is active and it is a functional organization in the context of judicial administration. I am personally not satisfied with the present functions.  We have two important functions, one is appointment of judges and other is how to take the judicial function. This is a very important subject. Judicial Council is an apex body in the appointment of judges. We need to develop expertise. We need to delegate the authority. We need to develop the process to list proposed names of judges. Had we done so, the council would have been transparent and accountable. It would also maintain an academic and professional level in the judiciary. 

What is the reason behind the failure to do so?

One of the main reasons behind the failure of its proper functioning is the constitution, law and regulations.  As the constitution said, there is the need to have an act for Judicial Council which we don’t have now. Similarly, we failed to make the regulations.  We are unable to amend the regulations. In the last eight years, we haven't had the act. We need to change the current regulation to make the council more effective. The present council failed to amend its own regulations. We are unable to bring the new act.  At a time when the country has already transformed from a monarchical to a republican nation, we are yet to amend the regulation as per the changes. It is necessary to change the regulations.

What is the constitutional status of Judicial Council?

Although Article 162(3) of the Interim Constitution says that necessary legal arrangements shall be made on the basis of democratic norms and values to bring about gradual reforms in the judicial sector to make it clean, impartial and independent, we have not done anything as per the spirit of the constitution. Constitutionally, we have certain expectations. So far as implementation of such articles is concerned, we are still far behind, and we don’t have any ground in terms of laws and regulations. People and community have expectations towards us as per the constitution. When we fail to meet them, it is natural to see the dissenting voices against the judicial council. The leadership also failed to move forward these agenda. Had we made certain decisions, the situation would have been different. If there is a political will and determination of leaders of the Council, we can make a lot of differences. We are just a helping hand. It is natural to see debates on present setup of JC as the CA is trying to search alternatives of each institution. However, the existing stricture of Judicial Council is adequate and enough to make reforms in the judiciary.

As the Supreme Court has been facing severe criticisms, how do you see the role of the new leadership in the Judiciary?

I don’t think there is any alternative to JC, including making a parliamentary committee with larger share of representatives. I don’t think such a political committee can save the independent judiciary.  The Interim Constitution has certain provisions which guarantee the independence of the Council. The article 112 (1) has made clear cut provisions for the body.  According to the article, the role of Judicial Council is to make recommendations and give advice in accordance with the Constitution concerning the appointment, transfers, disciplinary action and dismissal of judges and other matters concerning judicial administration. Headed by chief justice of Supreme Court, the council consists of five members, including the minister for justice, senior most judges of Supreme Court, a legal expert and a senior advocate or advocates having more than twenty years of experience.

Do you mean there is no need of reforms in the current setup?

There is no need to change the existing structure of the Judicial Council. Of course, we need to make it more inclusive and adjust the people from different walks of life. We can adjust and readjust people from different walks of life even within the present space.

What is the regular function of the Council?

Besides giving advice on appointment, transfer and disciplinary action pertaining to judges, the Council also carries out preliminary investigation of a complaint received against judges. It can also constitute the committee of inquiry. The council has given broader role in the judiciary. In the absence of Judicial Council Act, we are yet to function properly -- although the constitution has made it clear that other duties and power of Judicial Council shall be determined by law.

If there are such a constitutional mechanisms, why was there a controversy in the appointment of the judges last time?

What I can say now is that recommendation of the council followed constitution, law and regulation of Judicial Council. This is the reason even the hearing Committee of Legislature Parliament cleared the name recommended by the Council. As we followed seniority as our criteria, recommending the name of those sitting chief judge of Appellate Court, no one raised the question over our criteria. Chiefs of Appellate Court are equal to the justices of Supreme Court. The criteria to recommend the judges on the basis of seniority were the best in the existing system.

Why did you choose these criteria?

Under the existing constitution, law and regulations, we don’t have other options. We recommended the name for the court when there was a vacancy of large number of judges. Had not we recommended the name, Supreme Court would have piles of petitions. We recommended the name of judges to avoid a crisis in the court. No one proposed other basis as an alternative for the seniority. I cannot deny the fact that the recommendation could not fulfill the vested interest of certain individuals, group interest or ideological interest. What I can say is that it was the best decision taken by the council. In the process to address the crisis of the period, we were able to avert it.

As Nepal has been going through a constitution writing process with debates on the structure of new judiciary, how do you see the role of newly appointed chief justice in it?

Being an experienced and highly qualified judge of the Supreme Court, the leadership of the present chief justice will be very important in shaping the future of judiciary. His recommendations and experience can help to retain the independence of judiciary.

As political parties have already made it clear that they will promulgate the new constitution by Magh 8, how do you look at the on-going debates over judiciary?

I am watching closely the discussions and debates over the judiciary in the Constituent Assembly. My opinion is that there should not be a provision for temporary judges in the Supreme Court. There should be only permanent justices at the apex court.  There was discussion on 11 permanent judges or 15 judges, including a few temporary ones. If the new constitution accepts the present setup of Judiciary, there should be 21 or 25 justices to make the apex court effective. We need to lobby for a larger number of justices. Instead of forming two-member division benches, there should be five members in the benches for final verdict. In the Appellate Court, there should be a bench for at least three judges for the final verdict.

Why are you suggesting for this?

If we want quality judgment, the bench should be larger. It should give more impartial and quality judgment than the present judgment delivered by smaller benches.

Don’t you think that there is the need to reform the judiciary?

As I have already told you that there is need to reform the judiciary, including the Judicial Council. Media and legal communities, particularly lawyers, can play a crucial role in shaping the new judiciary and reforms that need to be taken. There is the need to discuss the necessary human and other resources.

What do you suggest to curb the corruption which is reportedly growing in the judiciary?

I have also been reading these kinds of reports in the media. There is no question of tolerating any kind of corruption in the judiciary. Thus, I have proposed a National Judicial Investigation Commission to deal with the corruption cases in judiciary.  The proposed commission will handle the cases of corruption within the judiciary.

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