Judicial Competence Conduct Also Matters

By Mukti Rijal

THE Constitution of the Kingdom of Nepal 1990 has made judiciary an independent organ of the government. it is said that the Nepalese constitution subscribes to the Westminister framework. It gives great prominence to judicial independence and makes the government work through the interactive roles of the King in the Council of Ministers and King in the Parliament. Article 84 of the Constitution states "Powers relating to justice in the Kingdom of Nepal shall be exercised by courts and other judicial institutions in accordance with the provisions of this constitution, laws and recognised principles of justice."

Principle

This provision thus sets forth some major principles. First it emphasises the principles of separation of powers in so far as it relates to powers relating to justice which courts alone should exercise.

Secondly, it underpins the notion that Parliament is not supreme and cannot enact laws to give judicial power to institutions which are not inherently judicial. This provision clearly maintains that judicial powers are to be exercised according to the principels of justice. The phrase recognised principles of justice refers to such principles which must be taken into account in the context of resolving disputes brought to it for decision. The principles of recognised principles of justice seeks guarantee of procedural fairness. The basic requirement of a fair hearing is that the concerned party should be given the opportunity to be heard.

Justice should not only be done but should be seen to be done. This principle demands that no one should be in his own case. Bias might arise when an adjucicator has some interest in the subject matter of proceedings before him. If a party has interest in the outcome of a dispute, he should be disqualified from hearing it however small the interest may be. Equity constitutes one of the important principles of justice. As a recognised principle of justice, equity demands that no wrong should be allowed to go unredressed. It should be remedied by courts of justice. When two persons have equitable claims in respect of the same subject matter and one of them has, besides, the equitable claim, a legal claim also, the claim of one who has both equitable and legal claim is to prevail.

The Constitution intends to ensure that the judiciary is not only independent but also competent as well. Article 87 of the Constitution provides for appointment, qualification and conditions of service of judges of the Supreme Court. Article 87 (2) states that renowned jurists and law practitioners are eligible for appointment to the Supreme Court. The previous constitutions made eligible only those who worked in the judicial service. But the new provision has opened up possibility for eminent lawyers and jurists with the record of judicial service to get appointed in the apex court of the Kingdom of Nepal.

Article 88 confers upon the Supreme Court extra ordinary jurisdiction. This makes the apex court the guardian of the Constitution. Ariticle 88 (1) is very liberal as it allows any citizen to challenge a law. The right of judicial review given in this article to the Supreme Court is very significant and meaningful. About this right of judicial review Chief Justice of the United States Marshall said long back "Courts cannot close their eyes on the constitution, and see only the law which offends with tegh constitution. Any doctrine which allows this would subvert the very foundation of all written constitutions."

Any law in conflict with the provisions of the Constitution can be declared by the Supreme court as being void as a whole or to as many part thereof. In fact, the task of reviewing the constitutionality of a provision is a delicate one. It needs to be performed in a very prudent manner. The writ jurisdiction given to the Supreme Court by article 88 (2) allows it to issue whatever orders and writs it thinks to be appropriate in the context of a given dispute. The Supreme Court is not constrained in granting remedies by what has been prayed for by then parties in their pleadings. Moreover it has also the power to give declaratory judgements and directive orders.

Fine Balance

The constitutional provisions referred to above indicate that the judiciary should competent enough to deliver what is said as full justice Poorna Nyaya to the people. However, there are some problems that are found affecting directly or indirectly the process of the administration of justice in the country. As told by a former chief justice of India a fine balance must be struck between judicial independence and conduct of judges operating the justice delivery mechanism.