Nepal Judiciary, Courts and Lawyers

Challenges, Scopes and Solutions to Restore the Faith in Justice System and Legal Professions

Aug. 16, 2022, 12:30 p.m.

Corruption in Judiciary/ Courts

Headed by Supreme Court Justice Hari Krishna Karki, a rent report prepared by a committee pointed out that there is rampant corruption in the judiciary that begins with justice selection. On its 250-pages report, it is stated that middleman also plays role in the courts, connecting judges, lawyers and the parties and of the cases, interfering on administrative works and even in frequent cases judges, lawyers, court staffs also work as brokers/ agents they directly/indirectly work as middle person to meddle in the cases. Nepal Bar Association (NBA) is quiet and fails to even address the grave problems of lawyers and clients.

The Judicial Council is responsible for recommending the names of judges but the council prefers names based on their relations and interests. The selection processes of judges in courts are very controversial and debatable. Judiciary is one of the main bodies of the State. It is the interpreter of the constitution and the law its role is to protect and promote democracy. It is an independent body for fair justice and power to enforce fundamental rights guaranteed by our Constitution.

It should focus on a justice system which needs to be independent, affordable, accessible, fair, trustful, and impartial, on rule of law and maintain peace in society it should complete its duty directed by the Constitution, that all Nepali citizens should practice their constitutional and fundamental rights. All legal professionals and judges should promote public faith in judiciary and courts. The courts/ judges must follow the Constitutional and Judicial principles and precedents. Also, the courts need to follow the norm that Let Hundred Guilty Be Acquitted but One Innocent Should Not Be Convicted. The courts/ judges should be very careful especially in criminal justice cases. Justice system should promote accountability, transparency, rights to fair hearing and trail, access to justice and many other important aspects. Also laws/ rules are made to follow, but in Nepal many laws are rules are made to be broken, not to follow the harsh reality of policies, code of conducts, directives are not implemented and enforced in Nepal in major areas. There need to be strong and powerful enforce mechanism of the government to implement directives, rules, programs and policies. The decisions and judgments by courts and judges need to be strictly followed by the government and the general people on time. The cases like Public Interest litigations (PIL) of broader public rights should be handled with responsibility.

CJ Rana, Accusations and Impeachment Motion

The Parliamentarians of ruling political parties charged many allegations to Chief Justice Cholendra Shumsher Rana in the impeachment motion registered in the Parliament. They have blamed CJ Rana was incapable to uphold democracy, human rights, rule of law, constitutional supremacy and independence of judiciary

Corruption and brokering matters during his period and misuse of power and authority in the judiciary. Other accusations are - arbitrary use of constitutional rights and responsibility ruined the image of entire judiciary in the country. The CJ was slow off the mark to perform for augmenting the role of judiciary and rule of law in the country. CJ Rana's activities and decisions invited severe criticisms as he worked against code of conducts and against law. He failed to maintain checks and balance between the State organs. The House of Representatives recently began a detailed discussion in response to the impeachment motion against Chief Justice Cholendra Shamsher Rana after nearly five months.

Following a general discussion, the House sent the motion to the impeachment recommendation committee for a detailed discussion. The motion was tabled in the House on March 13, but it was put on hold as the House session was prorogued. With the postponed, it was expected that the motion would not be endorsed, yet he would not return to the office.

Even now, many doubt if Cholendra Shamsher Rana will be impeached as the House has less than three months to complete its term with the next election date already announced. Earlier, on March 6, the house formed an impeachment recommendation committee to study the motion.

Selection and Appointment of Judges in Courts

Some of them are political connection of the judiciary and the courts and selecting judges on the basis of their political parties’ affiliations and political leaders are one of the main problems in courts. The political parties also have control over NBA which is a major difficulty of fair and trustful legal and justice system. The judges who are appointed should be based on their academic qualifications, which have moral integrity, ethical, social dignity, honesty and dedication to these reputed and prestigious posts. Present Constitution states that that Chief Justice and other Judges are appointed by the President and Chief Judge on the recommendation of the Constitutional Council and Judicial Council respectively. If we focus on the formation of the Constitutional Council and Judicial Council we can find out that there is an indirect influence of political parties and leaders. The Constitutional Council is formed by 5 political Class members out of 6 and the Judicial Council is formed by 3 politics affiliated members out of 5. If the appointment of judges is influenced by politics then we cannot hope for a fair trial and truthful case hearing. Some appointment of judges and their decisions are having bad impacts and losing trusts in overall judiciary.

In recent times Nepal Judiciary and Justice System is charged with corruption and unfair practices. It completely abandons rule of law and equal justice. There are many problems and challenges in judiciary like politicization, political interference on selection and transfer of judges’ unfair judgments and decision making, financial issues, bribery etc. The selection of judges should be transparent and honest. The courts process and cases are lengthy, time consuming and delay in deciding the cases. The trials and hearings and decisions on courts are not trustful and reasonable and in many cases are decided on vested interests.

Legal/ Law Education to Students

The process of introducing some form of moral education throughout the judicial system must begin in law colleges, alluding to two major issues: the quality of education and the impact the judiciary’s politicization has on students. Measures like a broad curriculum revision and a balancing of teacher to student ratio are prerequisites to bring positive changes in the judiciary. Also courses on moral education on laws and justices also should be introduced from lower grades of schools. The courses like ethics, morality and social responsibilities are very important from earlier stages of education.

Only few of senior lawyers are independent of their own thoughts and their subtle expression of disagreement to the status quo is not enough to change the tides.

Where there is no independent legal profession, there can be no independent judiciary, no rule of law, no justice, no democracy and no freedom. Law colleges must be the starting point for moral education into the judiciary, a reference to two important concerns: the uplift the quality of legal courses and the effect that the politicization of the judiciary has on students. measure include a comprehensive curriculum reform and a balance of teacher to student ratios There are not enough scopes to law students to study hard and be a judge in the current situation. Because judges are mostly appointed on political connection, someone who has strong and powerful connection may directly be Judge in Higher Courts and in Supreme Courts. In some law colleges, students do not regularly attend the classes .When asked about their absence student responds that success in the legal field is determined by political connections, involving in party and politics, rather than class presence, and thus political events are more important than classes. Many students miss the class lectures and only appear in the exams .Most of the students agree that they were misled about how the judicial system works, but when students are not taught how to confront immoral legal practices

NBA, NBC and other Legal Organizations

NBA is losing its genuine independent voice. Lawyers need to step up to free the bar from political control and should start a movement to reestablish a free and independent judiciary. They need to stop Bar leadership of being an agent of political parties on their petty interests. There need to be a unified demand amongst the majority of independent lawyers The Constitution’s provision of a free, independent and strong judiciary has not been practiced in reality as judiciary has been turned into a platform for political parties The report prepared by a committee led NBA, which is the federal organization of Nepali lawyers is expected to intervene and make constructive changes to better the image of this profession and further strengthen its role in, promoting democracy, rule of law and human rights. However, the leadership of NBA is busy promoting the interest of political parties; Nepal Bar Association prefers to remain silent just for the interests of some senior lawyers. The bar needs to bring forward severe mechanisms to ensure that its members are always adhering to the professional code of conducts. It seems that organization like NBA which should work for the welfare, rights and betterment of all lawyers but it is working interests of some lawyers only. The current anarchy, inspired by some of the senior advocates, should be immediately stopped and rule of law should be reestablished to govern the association. A distinctive ideal of professional excellence should be a lawyer’s first and foremost commitment and the bar should play a proper role to ensure all of these. .

Secondly, Nepal Bar Council (NBC) should also take into account its role of investigating the actions of lawyers and take actions if they violate the code of conducts. NBC’s role is largely limited to taking exams for new advocate licenses and maintaining records However, its mandate is much wider and a proactive bar council can, to a good extent, keep the good leadership of the Nepal Bar and actions of its members to a good check and balance. NBC should make Advocate License exams more relevant, systematic and practical so that generous and committed young lawyers will pass out the exams. The unethical works and acts of many lawyers are setting bad examples of “no discipline in democracy”. So, a significant contribution from NBC is required soon as possible to correct the ongoing bad practices and to restore the identity of this reputed occupation.

Politicization and criminalization of the judiciary happens, when lawyers loyal to political parties and their cadres are appointed as judges and when the same judges start working based on directions of their respective political parties and leaders.

. The political parties also have control over NBA which is a major obstacle of fair and trustful Legal and justice system. The judges who are appointed for such prestigious and reputed posts should be based on their academic qualifications, which have moral integrity, honesty and dedication to their profession. Internal corruption in the judiciary is a problem that the protests by NBA and lawyers recently against CJ have failed to address adequately. Legal profession must always be independent of political interference. We will need strong policy and even strong enforce mechanisms in place to implement them. However, political subjugation of the judiciary through political appointment of lawyers as judges and control of the bar association through political interference should be stopped at any cost. Also Nepal Bar Association is sharply divided along party lines and also Supreme Court Bar, High Court Bar, and District Court Bar Units follow the same

Challenges and Opportunities for Young Lawyers

Many young lawyers point out the legal education taught in colleges are different when they graduate and attend the courts and start a legal career The law courses they learn in colleges are more theory and in real professional field they lack practical aspects. Thus the courses in law colleges should be made in such ways that their application in real life should be also considered... Students of law also have no method of engaging in collective legal public discourses for their legitimate issues. Government Law Colleges have student unions where they focus on political and party activities. They courses should also include on corruption controls and how to confront with wrong and unfair legal practices in judiciary and courts. It is responsibility and duty of all legal workers to restore the glory and faith of our dignified and prestigious profession.

Our Constitution has given us rights to support a political ideology and be a member of a political party but when lawyer wear a black coat inside the court premises and in legal arena first lawyers should do their duty independently. instead of party politics. Lawyers need to be independent, fair, defenders of democracy and freedom, rule of law and constitutional supremacy also as social engineers and change makers of society. The competition is very high in legal field and networking is very important for success in the legal profession just like it does in any other profession. Many Clients also depend on lawyers who seek for connection to judges, political relations, middlemen and other financial and personal motives to win the cases.

Art of Advocacy and Litigation Skills

We participated in a workshop/ program for 3 days 27-29 June 2022 organized by Lex Jurist, a Law Firm and Center for Commercial Law and Corporate Litigation (CCLL).

It was really great of Young Advocate Abesh Adhikari and his dedicated team members for arranging such a worthy program. Senior Advocates Luv Mainali, Meghraj Pokharel, Sushma Baral, Advocates Apurva Khatiwada, Anurag Devkota and Attorney, Sanjiv Regmi, Attorney General Office presented their views on art of advocacy, litigation and other important current legal and judicial issues. It was really a big opportunity to meet, know and interact with other young lawyers on the program. While attending the event and learning and discussing why and how the art of advocacy is very important for advocates. During the presentation by legal experts many ideas and thoughts came into my mind on advocacy skills, litigation, the challenges and opportunities for young lawyers in this field, corruption in judiciary, selection of judges etc. I have analyzed some of the important issues as a lawyer after the event citing important problems and solutions in judiciary and legal career

Advocacy and litigation skills are very important for legal professional success Lawyers and their clients/ parties have chances of winning the cases if lawyers have good art of advocacy, litigation skills, present proper evidences, relevant facts, precedents etc. Judges should decide the cases on basis of all the details the lawyers have presented in court rooms. But in Nepal in recent times, the real states of advocacy, litigation, evidences, facts and precedents are not the factors of winning and loosing the cases. But the setting of cases by judges, lawyers, clients, middlemen instead of proper hearings and trials. The settling of cases by personal vested financial interests and by political parties and leaders and criminalization of judiciary takes place.

Conclusion

If courts, judges, lawyers, court staffs are involved in corruption, breaching laws and violating code of conducts? Who will investigate and prosecute their immoral and illegal practices and actions? That is the most important question is today’s judiciary and legal/ justice system. In Nepal, many lawyers do everything else but they don’t do their main works that is advocating.

Recently a unfair and immoral legal practice of audio recording between Kathmandu District Court Judge and Advocate making a deal of Rs. 20 million to release businessman on bail has been leaked .In the audio,, advocate is heard asking for bail amount.

Supreme Courts and all other courts, judges, lawyers need to have strong courage and determination to investigate the corruption and misuse of powers and authorities from higher to lower levels. Big Businesses and Financial Companies also need to pay proper taxes to the government on time and not only small companies are forced to pay.

Particularly CIAA, Money Laundering Investigation Office, Revenue/ Tax Offices, should be provided more powers and authority and courts, judges and lawyers should cooperate them in those important matters. Our Constitution even need to be amended to make CIAA and other such effective bodies to be powerful, strong and efficient.

Nishesh Dhungana- Lawyer, Advocate, Lecturer LLB (TU) MA International Relations (JNU) Email: nishesh.dhungana@gmail.com

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