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JUDICIARY |
Bench In Shambles Despite its importance in strengthening of the democracy, government annually allocates little more than 0.03 percent of total budget to the judicial sector. Nobody questions the role of judiciary in good governance, but how can the institution with inadequate infrastructures deliver is a matter of debate. In such a situation, how valid are the criticisms against the functioning of the judiciary? By KESHAB POUDEL Date: Wednesday, May 3rd, 2000. Time: 11 am Venue: A dark court room in Kathmandu District Court at Charkhal. Subject: Hearing on drug abuse case.
As soon as the judge allowed plaintiff's lawyer to plead the case, the proceeding of the court began. In an hour's time, one after another three young lawyers pleaded the case defending their client rejecting charges leveled by the police. Eight observers including relatives of the accused, police and public prosecutors were present at the court. The hearing of the case seemed neither interesting nor serious. Except the bench assistant, who was busy writing the proceedings, others were simply not interested to what they were witnessing. A judge who sat at the corner of the room leaning in his old chair passively listened to the arguments without a single interjection. The tranquility of the court room was broken frequently by the sound of people moving up and down the broken wooden ladder just outside the room. It was during the presentation of arguments by the third lawyer that the lights in the court went off suddenly plunging the whole room into darkness. That was when the judge announced adjournment of the hearing. Welcome to the Nepal's busiest court room. The rundown complex in Dillibazar popularly known as Charkhal Adda houses not only the Kathmandu District Court but also several other administrative offices. Such is the present state of the Charkhal complex that whenever somebody walks at the top floor, clouds of dust fall below accompanied by earthquake-like tremors and sounds. But the situation in the Kathmandu District Court is not unique to the country. Most of the court hearings in district and appellate courts resemble that of Kathmandu. The broken benches, congested chambers and tedious hearings are some of the characteristics of Nepal's judicial system. Because the courts do not have adequate budget to buy books, there are no libraries and reference facilities from where a judge could acquire better knowledge about penal systems and other international precedents. Although Nepal's judiciary is quite powerful -- having power to interpret constitution and declare any law null and void -- the court room environment shows that the judges, lawyers and court room personnel are still following outdated modes of functioning. In each annual meeting of Nepal Bar Association, lawyers have been repeatedly calling for the efficient and impartial judiciary. But they have never raised any question regarding the weak infrastructures in the court and the small allocation of the budget. Every one is talking about the corruption and other unethical practices in the court but nobody ever speaks anything about the existing infrastructures of the court. Overall attitude of the bench seems to be influenced by preconceived notions and young lawyers, too, seem not serious and studious enough. At the afore-mentioned hearing, all the three advocates repeated the same arguments while the judge at the corner did not intervene nor questioned their presentations. "The practice of reading is disappearing. Why should anybody need to study since such studies do not have influence over the decisions in the court," said advocate Bharat Raj Upreti."If there is no return, what is the use of investment in buying the book. It is better to deal without book." The physical facilities of courts in other districts as well as appellate courts are also not different. Some courts have new buildings but they are still not equipped well with basic infrastructure. Appellate courts and district courts are not alone to share this tragedy. Even the Supreme Court of Nepal lacks minimal physical facilities. The benches of the Apex Court are also poor in terms of physical environment. The benches in the apex court which has the power to interpret the law of the land does not even enjoy the service of international reference books on law nor it has books of precedents. It is their own activities that are responsible for the criticisms against courts. Only a few leaders in the judiciary remember their commitments for judicial development. Otherwise, almost all Supreme Court's chief justices have retired without breaking any tradition. "Whoever is the chief justice, his duty seems to be to please all the justices and lawyers," said a lawyer on condition of anonymity. What is wrong with the judiciary, then? In the absence of adequate budget and proper infrastructures, one cannot change the present situation. "When a court does not have enough budget even to buy books how one can expect high class decision?" asked another lawyer. Strangely, the apex court and Central Law Library have a stock of over 10,000 and 15,000 books respectively but they find only a handful of visitors. Besides, these libraries do not have latest books on international laws and important precedents. "Working in judiciary is a very complicated task as it demands commitments from all sides," said Laxman Aryal, justice at the Supreme Court. According to the annual budget allocation, judiciary gets a mere 0.03 percent and more than ninety-percent of the budget is spent to meet administrative expenses. The budgetary allocation is such that it does not even have a provision to pay for petrol for the vehicles of courts. Remaining small amount goes for the maintenance of the court buildings. The judiciary spends next to nothing on teaching and learning process. "Although the judiciary plays very important role in maintaining social stability and rule of law, it is totally neglected by the government and is seen as an unproductive area for investment," said advocate Bishwa Kanta Mainali. "How can a judge deliver good justice if he does not have any facility for reference as well as reasonable physical atmosphere?" asked Mainali. Lack of physical facilities, others too agree, is responsible for many of the existing problems in the judiciary. As there is no atmosphere for learning and reading, most of the decisions are made on human factor rather than based on merits and principles. "Nobody needs to study when the decisions are made on human factor," Mainali said. As the habit of learning seems to be vanishing among judicial actors, the quality of judicial decisions is suffering. Not only the judges, the lawyers, too, spend very little time and money on their studies. Average lawyer spends less than five percent of his\her monthly income to buy international books on constitution and court's proceedings elsewhere. "As judges do not listen to the theories and principles, why should I spend the money to buy such books?" asked a lawyer. Justices also agree that habit of learning is disappearing. "The judges and lawyers do not take learning books seriously," said Kedarnath Upadhyaya, a Supreme Court justice, at a seminar in Dharan organized by International Commission of Jurists\Nepal. "The practicing of law is a very challenging profession that demands serious habit of learning." The government has recently set up a task force under the chairmanship of Kashi Raj Dahal, Spokesman of Supreme Court to submit a report to identify the short term and long term problems affecting the Nepalese judiciary. Although this is for the first time when the government set up a committee seeking fresh suggestions to improve the judiciary, it is still unknown how the finance ministry will respond to the report. Lawyers complain that judges in district courts do not listen to theories and principles of laws and decide merely on the basis of book on Civil Code Act. "When judges do not listen to the principles what is the use of us spending hard-earned money to buy valuable international books," said a junior lawyer. "In fact, even if some lawyer carries books and refers the cases of other countries, he may be harassed by people," said advocate Prakash Osti. "Infrastructure alone is not enough to guarantee the efficient judgement." In the last one decade, some important changes in the judiciary were witnessed in the country but the quality is still below par. The salary of judges and justices were increased and other facilities like housing and vehicles were also added. Unfortunately, judges were not paid to buy books. Likewise, there is no budget to buy books for the court libraries. Even a decade after the promulgation of the new constitution, the situation remains similar. " The judges need more exposure to improve their performance. To increase their efficiency, judges require training," said Krishna Man Pradhan, chairman of Rural Development Foundation Nepal. All previous five chief justices since 1990 completed their tenure by complaining about the lack of resources. The present chief justice who has held the post with determination to make the judiciary more effective, seems to be following the path of his predecessors. "The Constitution of Nepal 1990 envisages an independent and competent judicial system. And judiciary has been given right to protect the supremacy of Constitution and freedom of people. It needs to increase the efficiency of judges to improve the justice delivery. In the last ten years, the government has not taken any step to improve the competence and efficiency of judges. If this side is neglected, judiciary may not be able to fulfill its duty," said Kashi Raj Dahal, Spokesman at the Supreme Court. Not only the judges and justices, the bench assistants who have to play important roles in the court proceedings have their own story to tell. There is a discrimination within the court on the basis of salary. Judges are paid more salary and other facilities than other official staffs at the court. There needs to be an integrated approach to deal with the quality and efficiency of judicial system as a whole. Judges, lawyers and court's employees need to have common approach. At present, all lack the adequate investment. Even benches at Supreme Court do not have reference books and other basic facilities like computers and faxes. In such a situation, the question of impartial justice delivery may only be a dream. Infrastructures are one of the pre-requisites for the quality of justice and judgement. The court lacks building, maintenance budget, papers, computers, fax, chairs, capable manpower and basic books. The acute lack of basic facilities in the Nepalese courts could not have been better exemplified than by the above-mentioned case where the court proceeding of the Kathmandu District Court was stalled when the light went off. That was not a single day when the court proceeding was so stalled. It is a regular phenomenon in Charkhal. Along with Charkhal, the hearings are frequently postponed in Terai districts in summer season because they lack fans. Kathmandu District Court occupies the southern part of Charkhal, one of the oldest administrative building constructed nearly 150 years ago for the administrative purposes by the then Rana regime. There are altogether 16 Appellate courts in the country and 75 district courts. Along with the poor physical infrastructures, the situation inside district courts are much terrible as there are virtually no books and documents including old precedents and definitions regarding the Civil Code. Even some courts do not have up-to-date books on civil codes. The Supreme Court building constructed in 1957, does not have adequate space to accommodate the people who visit it everyday. Although Supreme Court has its own library, it lacks essential books related to the international law and jurisprudence procedures. As the computer system is gradually taking over in other institutions, judiciary is yet to have any computers at all. The Apex Court has some computers but networking is still absent. Despite the importance of internet in the information dissemination, the apex court is yet to get connected with it. Lawyers and public prosecutors' offices, too, have similar problems. Most of the lawyers have their own reference but the problem with them is they lack the books related to the international law and jurisprudence. "The court needs well equipped infrastructures including good library and references in each bench," said advocate Radheshyam Adhikary, former President of Nepal Bar Association. The situation in District Attorney General's Office is no better at all. Except the Attorney General's office, others lack minimum facilities. "Only a few lawyers refer to international jurisprudence books and read precedents of different countries while pleading their cases. Lawyers spend most of their time reading just the Muluki Ain (Civil Code)," said a senior justice at the Supreme Court. From infrastructures to the investment and study, there is a breakdown every where. In such a situation one cannot expect the fair and impartial justice. More the exposure to the judges and lawyers, better results they can produce. "Lack of infrastructure is one of the problems but it is not responsible for all issues," said advocate Prakash Osti, former secretary of Nepal Bar Association. "Facilities and salaries cannot determine the quality of judgement. It all depends upon the capacity of individual," said advocate Bal Krishna Neupane. "Individual commitment and capacity is very important in delivering impartial justice," he said. Lawyers in the country are found to be engaged in NGOs which is most of the time supported by the INGOs. Almost all senior lawyers have their own NGOs through which they get opportunity to expose themselves in international and national conference. In the last five decades, the lawyers got almost all advantages awarded by different International Non Governmental Organizations while they virtually neglected the development of judiciary. "Only a couple of judges get opportunity to go abroad for training and other professional work," said a district court judge on condition of anonymity. Harihar Dahal, President of Nepal Bar Association also admits that lawyers in the country have not been spending their time and money wisely. "Lawyers spend very little amount of money in learning. Frankly speaking, I spend only 15 percent of my income in developing knowledge," he said.
Judiciary gets very small amount of money annually to build its infrastructures and other internal facilities. In terms of basic infrastructures, the judiciary is very backward. According to the record, more than 100,000 cases are filed in different courts. The courts need electronic as well as other facilities to settle these issues on time. The courts should have computers to keep data. The courts also require the budget for research and other work. There needs to be training, seminars and other interaction programs for the judges. As efficient and impartial judgement is prerequisite for the able administration of the country, adequate budgets to develop the proper infrastructures for the judiciary is vital. For decades the Nepalese judiciary has been neglected as unproductive sector for investment, the time has now come to change the mindset.
Supreme court
Appellate Courts
District courts
Number of Courts
Sources Supreme Court 1999\2000 |
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