“Judicial Council Is An Aphorism” Upendra Keshari Neupane

Senior advocate and former member of Judicial Council UPENDRA KESHARI NEUPANE is a well-known lawyer. Senior advocate Neupane tendered his resignation following the dispute with Nepal Bar Association. Having served at Judicial Council in a crucial ti

May 17, 2016, 5:45 p.m. Published in Magazine Issue: Vol:09,No 13 January 22, 2016 (Magh 8,2072)

issues. Excerpts:

At a time when the country has been passing through a serious crisis with the lack of judges, how do you look at the overall scenario?

We need to understand two things to see whether the Judicial Council is functioning well or not. The first thing is JC’s constitutional role and constitutional process of the last three years. We need to know whether the JC functioned rightly or not.

How do you view the Judicial Council?

As per the constitutional provision, chief justice is the chairman of JC, and members comprise a senior judge, minister of law and two individuals with legal background. This is the composition of JC. Within this structure, we don’t have adequate laws. This institution remains an aphorism. Although one can see JC complete in terms of composition, this institution is still running on an ad-hoc manner. This is its history.

What role does the Chief Justice play?

The chief justice is the chairman, he allows the meeting and procedure to continue if he finds the situation is favorable in the period in appointment. Otherwise, chief justice prefers to remain indifferent in holding the meeting. This has been a common approach of all the chief justices since the establishment of the JC. The present chief justice Kalyan Shrestha is not an exception.

Do you mean CJ has the domination in JC?

Chief Justice summons the JC in case he or she sees the council is favorable in their proposal. They will table the proposal in the meeting. If CJ opposes, the JC meeting cannot endorse their proposal easily. In terms of composition, it is equal to all. However, chief justice has an important role as the chairman. My experience is that chief justices do not summon the meeting, if the council is not favorable to them.

Do you mean CJ believes he is superior in JC?

In other words, chief justices want to show themselves in JC meeting as a prime minister does in the cabinet. My experiences have shown me that this is not a cabinet of prime minister. However, the chief justice expects the same kind of treatment as the prime minister in the cabinet. As a chairman of JC, the chief justice holds the view that they are superior. Lack of clear laws makes JC incapable in taking the decision on time.

Why were the appointments delayed?

When I was a member of JC, the constitution was in the final process of writing. There were a lot of debates on the judiciary and its composition. We failed to make a decision on time because of transition. Even if there was adequate possibility to make appointments, the chief justices ignored it. I have to admit the fact that the JC is unable to make decisions formally. In the first phase, the appointment of judges could not be made because of chief justices. The process was stalled for a long time due to constitutional implications following the formation of election government.

As a former member of Judicial Council, how do you see the possibility of appointment of judges now?

There is a constitutional vacuum now. Either there is the need to amend the constituting or recommend the removal of difficulty to make new appointments.

Why did you not make appointments during the period of elections government?

The appointment of judiciary was suspended for a long time because of political transition the country. There was a vacuum following the dissolution of the first CA. There were many hurdles. JC could not take a formal decision. Even a petition was in the Supreme Court. Even Nepal Bar Association had strong feelings.

What happened after the second CA elections?

After the elections of CA II, we had made some appointments on the basis of seniority of career judges. However, some people raised unnecessary controversies. Some had made efforts to politicize the last appointment. This appointment was made after a long gap.

There was a criticism that the appointment of judges was purely politically motivated. How do you look at this?

Some vested interests ideologically influenced groups opposed to the appointment as they saw the appointment end the impacts of a particular ideological influence in the judiciary. They claimed their criticism was in favor or interest of judiciary. The criticisms were purely ideologically and politically motivated. Thus, some individuals attempted to politicize the appointment.

If you say the appointment is impartial, why did they oppose then?

You cannot please all. Some felt hurt because they considered the new appointment reduced the influence of particular ideology in the judiciary. Thus, it created a controversy up to the parliament. The criticism was purely politically motivated. When it was sent to parliament for hearing, then many lawyers realized the motive behind the criticism.

Why did you stop the appointment process?

After this, the judicial leadership and law minister might have felt that it was not appropriate to continue the appointment. Although we recommended the judges purely on the ground of seniority of the presiding judges of Appellate Court, some vested interests and individuals affiliated with political parties cast aspersion to the process.

Don’t you too feel responsible for the delay in appointment?

When persons with the right to bring the proposal were reluctant, members like me could not do anything. Our duty was to debate on the proposal. There is a different of opinion in judiciary, whether to make appointment in Apex Court from outside. There is a strong opinion inside the judiciary that there is the need to appoint the judges in Apex Court just from Appellate or high court. I do also believe personally that the judges at the Supreme Court should be appointed following a few years of experiences in High court or appellate court. However, it is impossible in the given situation.

It is reported that you also declined the suggestion of Nepal Bar. What do you say?

We cannot ignore the suggestions of Nepal Bar. Even at the time of appointment of eight judges in Supreme Court, Nepal Bar expressed concern that no one was picked on the advice of NBA. We assured NBA of accommodating their recommendations in the next round. However, nobody listened to us.

If such a controversy was raging outside, what compelled you to make the appointment?

This appointment was made to address the problems at the court. We appointed the judges to lessen the controversy but it was invited more controversy. Because of this controversy, new appointment was delayed. This situation still prevails. Even after over a year of my resignation, the JC has failed to make any new appointment. Even current chief justice was appointed a year ago. Why is he unable to make the new appointment? 

What is your experience in the appointment process?

What I can say is that the present process of appointment in judiciary invites the political interest. At a time when Nepal’s politics is influenced and directed by business interests, even the politics is business oriented. The business is very much related to loss and profit. Even the judicial appointment is influenced by loss and profit. Nobody thinks about the independence of judiciary, rule of law and democracy in the appointment.  Rather everyone sees the appointment on loss and profit. They link it to personal interests. They want to draw the cost of their investment. Even in recent controversy over the bill on National Reconstruction Authority, it is very much related with the business. CPN-UML and UCPN-Maoist opposed the bill and stalled the process when it was introduced by Nepali Congress government. They put hundreds of amendment and paved the way for dysfunction to take hold. Later two communist parties stressed the need to pass the bill at the earliest possible and they have done it. Here you can see the same parties have two characters.

Some communist affiliated lawyers accused you that you favored the democratic lawyers? How do you look at this?

We recommended the names purely on the basis of seniority not on the basis affiliations as a democrat or communist. The number was chosen from between No. 1 to 8 on seniority. There is a diversity. Our basis for appointment was to choose the judges who were chief judges of Appellate Court. They are senior most judges of the appellate court. There was no question of political ideology in the case of appointment.

How about the appointment at Appellate Court?

I do regret the event when some of the judges appointed at the Appellate Court under our recommendation reportedly visited CPN-UML central office Balkhu. Although some of them retired following the completion of their tenure, I do feel guilty for this.

Your resignation came suddenly. What is the reason behind your resignation?

I opposed the approach of the chief justice to move to appoint the judges on the basis of his personal selection. I started the culture of open argument in the Judicial Council. I decided to resign following the criticism on my capability and integrity by my colleagues. When I saw my critics in the Council and outside in my fraternity, I decided to quit.

What do you suggest to make the appointment free of controversy?

Given the present state of politics, it is very difficult to make non-controversial appointments. The controversy can be reduced if the appointments are made on basis of wider consultations and discussions among the members of JC and not on sole proposal of chief justice alone.

At a time when the number of judges is declining, do you see any possibility of appointment?

Recently, 38 judges were terminated because of the statement of chief justice that the prevailing constitution does not allow him to reappoint them. How can he ignore now to make appointment at Supreme Court when there is a clear provision that the appointment at the Supreme Court should be made from high court?

Don’t you think the present chief justice can make new appointments?

If the chief justice makes appointments, he will be criticized for violating the constitution. As the chief justice said declining to extend the tenure of justices of appellate court, the present constitution clearly spells out the conditions.

If the chief justice does take a stand, can he do it?

If personally CJ wants to appoint on the basis of cast, hair and political influence, there is a possibility of appointment. Otherwise, there is the need to activate the clause to remove the difficulty in the constitutional provisions or make amendment. There is no way to appoint the judges at the present circumstances.

How do you see the present judicial trend?

As we are practicing a liberal democracy in the country, the situation is that communists or leftists have greater presence and influence in the judiciary. This is a major threat for independence of judiciary as they ideologically do not believe in the independence of judiciary and rule of law.

How do you see the judiciary in Nepal in the context of globalization? How does our court take the Foreign Direct Investment issue?

As long as our judiciary does not prove it is independent, it is impossible to have foreign investment. The court needs to prove that it is very free and independent. Investors should have faith upon the judiciary that it is independent and capable to settle his or her case. They must realize that the court protects their right. However the situation is different. We need to improve our quality of judgment. There are so many cases piled up and the court does not show interest to settle them which have already sent a wrong message.

How important is the role of judiciary to bring Foreign Direct Investment (FDI)

FDI will not stop on the condition that Nepal’s judicial appointment stalls because of constitution. FDI will stop if the court fails to give timely verdict and give the sense that it can protect the interest of investors as per the rule of law. The present problem is that we have given space to reach each petition at the Supreme Court. Even the present constitution has provisions for petty petitions to go up to the Supreme Court. We should give the load to district and high court.

How time consuming is the court process?

We repeatedly listen to all the cases even if the court decides earlier. The proceedings and hearings are too boring. We are going through all public litigations which are taking a lot of time of our courts. We need to narrow down the process.

If NBA and the chief justice want, they can make a difference. In South Asia, Nepal’s Supreme Court has the highest number of judges and lowest number of petitions. There are 25000 petitions. We don’t have working modalities.  Most of the judges attend the seminars organized by NGOs and the decisions are influenced by the paper. Few of the cases demand jurisprudence. Our judiciary is managed by NGOs activities and outside situation has influenced the justice. We need to prove that our judges ignore this. We cannot say that we are not influenced by such activities, some petitions are decided very quickly and some others took a lot of time. We need to stop corruption in the judicial process. It justifies the corruption in results. We need to be clear on our judicial process to make our courts free from corruption. We need to revisit our judiciary on this basis.

 

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