 |
Kathmandu Wednesday September 26, 2001 Ashwin 10, 2058.
|
Check and balance
Chief Justice Keshav Prasad Upadhyay has
denounced the bill that empowers the Commission for Investigation of Abuse of Authority
(CIAA) to probe and prosecute corrupt judges. The bill as cited by the Chief Justice
stands directly against the will of judges, besides undermining the
"independent" legal system of this country. The government or in that case any
so-called autonomous body must respect the "independence" of legal system. Such
respect can only strengthen democratic values and dispense fair and impartial justice to
all. He spoke this at a symposium organized by SAARC Nepal the other day. However, the
Chief Justice did not elaborate why he said so, nor did he suggest suitable measures to
contain rampant corruption within the judiciary. The Chief Justice said that the control
and evaluation of judges or any disciplinary action against them must come from within the
judicial circle, instead of the CIAA. Does he mean that a judge is immune to any
disciplinary action that comes from outside the judiciary? What does he mean by the term
"independence"? In any democratic setup, all the three organs of the government
are equally important, and one cannot be singled out for special treatment. Without proper
separation of power, and the check and balance mechanism, democratic values will become
farcical, and the whole system will be thrown into disarray. Empowering constitutional
organs like the CIAA should be accompanied by regulations for checking them, if they tend
to go wayward. So far, the CIAA has filed more than three dozens of corruption cases
against various organizations and individuals. There are also a dozen cases filed at the
Supreme Court against the investigations carried out by the CIAA. But it is also not above
any disciplinary action. No constitutional organ is independent by itself, and is in one
way or the other checked by other organs. And this should apply to judiciary as well. The
Chief Justice opinionated that all disciplinary actions, involving judicial employees,
would be settled by the Judicial Council itself. But so far how many have judicial
employees been brought to justice? Unless the judiciary takes a bold and exemplary action
against them, and makes it transparent, it will be difficult for the public to believe in
its "independence". The judiciary system of this country lacks transparency and
efficiency. Numerous cases are piling up and gathering dust at the courts across the
country, and consequently, hundreds of thousands of people are being denied justice. But
virtually nothing noteworthy has been done to revamp the system of dispensing justice.
This undoubtedly deserves immediate attention and action.
Chief Justice Upadhyay argued that
"judicial immunity is restricted by judicial liability only". This indicates
that only the judges have their rights to impose the code of conduct on judges. No doubt,
the judiciary is a revered institution, and must be given due respect. But this does not
mean that there should not be any mechanism to ensure that it walks on the right track.
The Constitution of Kingdom of Nepal 1990 clearly underlines that the Judicial Council of
Judges maintains the judicial order of courts and judges. However, the government reserves
the right to empower the Judicial Council, only if the Council lacks adequate power. There
are provisions for appointment and disqualification of judges in the Constitution. The
Parliament can exercise these provisions whenever it sees necessary. If need be, the
Constitution should be amended, as in the other democratic countries, to take disciplinary
actions against the judicial employees. It is better if the government, as well as legal
experts, resolve this controversy before such bill is tabled in Parliament.
Other Stories
|
