Judges Need Justice
As Judiciary is brought under controversy, judges - who deliver justice to the people – are in need for justice themselves
By KESHAB POUDEL
All round crisis is going on in Nepal with the same intensity in all fronts. Whether it is the institution of monarchy or prime ministerial system, financial institution like central bank or army, they are facing the crisis of same intensity. Judiciary is no exception.
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Supreme Court: Difficult time |
Whatever the political system there may be in the country including the direct rule of King or direct rule of eight parties, the crisis continues. Some time back there was one set of force in power under the leadership of King Gyanendra, whose one point agenda was to isolate organized political force. Now there is another set of force in the power, with one point agenda of unity against the King.
Even after the change of guards in power following People's Movement II of last April, Nepal 's institutions are in great strains. Under the direct rule of King Gyanendra judiciary was put under a threat through high level anti-corruption watch dog Royal Commission for Corruption Control (RCCC). Now under the leadership of eight parties in a new version of democracy as Loktantra, the judiciary is facing similar intensity of crisis coming from unelected members with no accountability to their position.
As a soft gate of the state, judiciary is now under much more increased attacked inspired and instigated by the forces of instability. Judges are not sure of their permanent tenure because of changing legal and constitutional position. Soon after its promulgation, the interim constitution has made mandatory provision for the judges to take oath of allegiance to it.
Recently, the second amendment in the constitution has introduced a provision of parliamentary hearing for the appointment of judges in the Supreme Court. The second amendment in the article 155 makes it mandatory for parliamentary hearing for the judges of Supreme Court.
"The country has unicameral house at present which is neither elected by the people nor are going to face any elections for continuation of their job. However, members of legislative parliament are immune from any criticism from the people as their tenure does not depend upon the elections results. All of a sudden, the House - which itself is not the result of popular elections - is empowered to examine the capability of judges to be appointed in the Supreme Court," said the analyst.
Prominent lawyers of all political leanings had come out vehemently against this provision in the constitution added by second amendment but there is no one to listen to them. "This is against the spirit of independence of judiciary and Nepal Bar Association and other members of civil society are against the provision of public hearing," said Bishwo Kanta Mainali, president of Nepal Bar Association. "This will damage the independence of judiciary."
The dissenting voices of lawyers do not make any difference to parliamentarians who work as shadow of eight party alliance. According to article 57 of the interim Constitution, the parliament will function in accordance with the political consensus and agreement among the political parties.
Now the house is examining four functioning judges of Supreme Court. As those judges have been delivering judgments in their capacity as temporary judges and some of them might have annoyed one or other political group or interest, one can imagine how they will be grilled at the hearing.
As t hey argue that the constitution itself is of a short term effect, the MPs have no rationale to introduce any such drastic provision with far-reaching consequences.
"This amendment has far reaching consequences in the independence of judiciary," said advocate and Member of Legislative parliament Harihar Dahal. "We have tried to convince our colleagues in parliament but no one listened to us," said Dahal who is a member of Nepali Congress.
With an aim to decide future shape of governance including the judicial structure, the election for CA is going to be held in November. Only CA can deal with such provision affecting basic structures of the political system as well as the constitution.
Legal communities - who are expressing resentment against the provision - are quite aware of parliamentary or senate hearing of other countries but in Nepalese context it is quite different as Nepal has been following the method of appointment on the model of judicial system closer to British or the model of some of South Asian countries like India, Sri Lanka, Bangladesh and Pakistan.
In parliamentary forms, the government is itself accountable to the parliament and all its decision considered to be taken under the consent of parliament.
"Besides this drastic provision in interim constitution, there are other kinds of attacks and onslaughts against the judges in person as well as judiciary as an institution. As a soft organ of the state, judiciary in Nepal has always been vulnerable to the effects of political destabilization. Whenever any serious change comes, it affects power, functions and its status also. This was the same in the Pre-Panchayat democratic days, during the Panchayat days and after the demolition of Panchayat," said the analyst.
According to the analyst, this time the damage to the Supreme Court is more serious and bigger in dimension. It is not only the institution of the judiciary and its independence and stability in crisis but judges are also subjected to scandalous attacks.
Nobody can deny that a lot of improvement has to be made in the professional performance by journalists or judges. Judges are not immune from criticism as media has valid grounds to do so. As there is a famous saying among jurists that the justice is not a cloistered virtue, it remains in public watch and scrutiny.
"There is systematic attack against the judiciary. It seems personal attack against me but it will finally affect the independence of judiciary," said chief justice Dilip Kumar Poudel, commenting on recent media report against him. "I am always honest to my job and judiciary while imparting my duties."
Judges always need to keep in mind that a standard of justice for a society is a matter of serious public concern. But citizens at large and the press should keep in mind that baseless and motivated insinuation harms the public interest more than that of a particular judge in a person.
"It is therefore a due upon the general public and media to maintain adequate restraint while expressing any critical opinion against the judges. Judges deliver justice but they too need justice. This is what we have been ignoring, particularly at the moment of political upheavals and instability," said the analyst.
Maoists Raise Objections On Envoy Nominees
A senior Maoist leader has raised serious objections against the ambassadorial nominations made by the government. Stating that there has not been prior eight party understanding regarding the nominations, Maoist leader Dinanath Sharma said they will not allow the process of parliamentary hearing to proceed.
Reports say that the Maoists want their envoy in 'A category' nations. Although seven parties have set aside Australia, France, South Korea and Denmark for Maoists to name their ambassadorial nominees, the latter have demanded that they be given at least one out of what they call as four 'A' category of nations. CP Gajurel, chief of foreign cell of Maoists, told Nepal Samacharpatra daily, that they want their man in at least one of the four nations.
"We have said we have to be given one of the four 'A' category nations such as United States, Russia, China or India," Gajurel said. "First of all, the list has to be agreed upon by the eight parties. Then, we should agree on seat-allocations as well," said Gajurel. Subsequently, the Parliamentary Special Hearing Committee also refused to initiate hearing procedure on the 14 nominees sent by the Foreign Ministry.
Earlier, the Foreign ministry had sent the name of 14 nominees – with only one change from the list that was published six months ago and which was later stalled after Maoist protests. Instead of Bhagirath Basnet who was recommended as ambassador to Britain, the name of former representative to United Nations Permanent Mission Murari Raj Sharma has been proposed in the new list. Likewise, Nepali Congress leader Sailaja Acharya has been recommended as ambassador to India , Tanka Karki to China, Dr Suresh Chalise to United States, Dinesh Bhattarai to UN Permanent Mission in Geneva, Pramesh Hamal to Belgium, Surya Kiran Gurung to Russia, Pradeep Khatiwada to Bangladesh and Dr Navin Prakash Jung Shah to Thailand. Furthermore, Ganesh Yonjan has been recommended as ambassador to Japan, Hamid Ansari to Saudi Arabia, Suryanath Mishra to Qatar, Guna Laxmi Shrestha B.K to Myanmar and Bal Bahadur Kuwar to Pakistan.
The list of the nominees is a mixture of NC, UML and NC-Democratic leaders as well as foreign ministry mandarins. Later Prime Minister Girija Prasad Koirala and Maoist chairman Prachanda also discussed this issue and agreed to sort it out through understanding.
