NATIONAL 9 (Spotlight Weelky)]

Threat To Judicial Independence

Against national consensus, the government has tabled a bill in parliament challenging the very essence of the independence of the judiciary

By KESHAB POUDEL

If both Houses of Parliament were to pass the Commission of Investigation and Abuse of Authority (CIAA) second amendment bill, the very essence of the independence of the judiciary would be undermined. To guarantee the independence of the judiciary by stopping the executive influence, the constitution has made separate procedures for justices and judges.

Under the amendment bill, a police authority can investigate and prosecute sitting justices and judges on any issue of misconduct and wrong behavior on the basis of a complaint. Although the Constitution of Kingdom of Nepal does not grant immunity from corruption to any public official, including judges, it has made certain procedures within the judiciary to take action against individuals working in that branch.

Article 87 (7) of the constitution says the chief justice or any other judge of the Supreme Court shall be removed from his office if, for reasons of incompetence, misbehavior of failure to discharge the duties of his office in good faith, the House of Representatives, by a two-third majority of the total number of its members, passes a resolution for his removal and the resolution is approved by His Majesty the King.

Article 91 (3) has also made provision for the removal of the judges of appellate and district courts. If the Judicial Council recommends that a chief judge or any other judge of an appellate court or any judge of a district court be removed from his office for reasons of incompetence, misbehavior or failure to carry out the duties of his office in good faith, or it if recommends that it is necessary and expedient to initiate proceedings against such a judge in accordance with law for reasons of misbehavior, and if such recommendation is accepted by His Majesty the King, such chief judge or judge shall be removed from his office or proceedings will be initiated against him in accordance with law.

The impeachment procedures in Article 87 are based on the English model where judges have held office during good behavior and not during the King’s pleasure and where they can removed by an address of removal presented by both Houses of Parliament. Prior to the execution of the new constitution, judges for fear of being dismissed by the King often gave verdicts in favor of the government in many cases. The proposed bill seems to be motivated by a desire to ensure similar decisions.

The constitution lays the grounds for removal of the head of the constitutional bodies. They can be removed under three grounds: incompetence, misbehavior, or failure to discharge duties of his office in good faith.

The constitution also clearly spells out the role and duties of the CIAA in investigating corruption-related issues. Under the functions, duties and powers of the CIAA under Article 98 (1): The Commission for the Investigation of Abuse of Authority may, in accordance with law, conduct or cause to be conducted inquiries into, and investigations of, improper conduct or corruption by a person holding any public office: Provided that the CIAA shall not have jurisdiction over the following officials: (a) any official in relation to whom this constitution itself separately provides for such actions and (b) any official to be prosecuted under the Army Act.

The government has proposed an amendment to Clause 2 (d) under which the CIAA can take action against the prime minister, minister and justices of Supreme Court, judges of appellate court and district courts.

"The constitution has not given any immunity to the judges for corruption and there is a constitutional provision to take action against justices and judges. Since the constitution lays the ground for the actions, every act that goes against the spirit of constitution will be null and void," said senior advocate Mukunda Regmi. "The bill seems to have been drafted by a person who has not even read the constitutional provisions. Otherwise no one would commit such a blunder."

"I have a serious doubt whether our politicians, ministers and bureaucrats have read the constitution that they have taken an oath to uphold and defend," said Regmi who was a member of the commission that drafted the present constitution. "It is shameful to see that legislators who have the authority to bring impeachment proceedings against judges are giving their authority to the police."

The amendment is not only against the spirit of the constitution but also against the concept of an independent judiciary. "It does not reflect the view of the majority party which is committed to complete democracy with all ingredients, including an independent judiciary. Power struggles in parliament have pressured the ruling party and leadership and the prime minister always feels unsafe and shaky," said a political analyst.

Kantipur, a leading Nepalese daily, said in a recent editorial said an independent judiciary cannot be placed on the fear or coercion of a certain commission. "If the essence of an independent judiciary comes under the scrutiny of a particular organization, democracy will be under threat," wrote Kantipur.

Having no power to go to the people through a fresh election, successive prime ministers have succumbed to unprincipled and opportunistic pressures. The elements of competition have been there but its dimension has been highly magnified through a great deal of propaganda. Putting aside all serious of problems of the nation, elimination of corruption has been made the No. 1 issue.

To that extent, one can understand the utility of the anti-corruption bill pending in parliament. But the effort to undermine the independence of the judiciary defies comprehension. The provision of the constitution has been the same since a large bench of the Supreme Court interpreted the powers prescribed to the CIAA in a public interest litigation. The interpretation explicitly said that justices, judges and some other functionaries of the constitution were beyond the jurisdiction of the CIAA.

"Judges have their own procedures under the constitution to be removed from their position. By the process of impeachment by parliament, judges of the apex court can be removed and thus they can be made liable for the offence

of corruption also," said a lawyer.

Until the judges are in their posts, they cannot be made subject to interrogation and investigation by an executive agency like the CIAA. Regarding the judges of district and appellate courts, the Judicial Council has been incorporated in the constitution that takes the responsibility of examining the conduct of judges.

The draft bill overrides the procedures established by the constitution. According to lawyers, the draft contains clauses contradictory to the constitution as well as the decision of the large bench of the Supreme Court.

The preamble to the constitution has been made some supreme ideals for the good of the state. These ideals are supported to inspire and integrate the whole nation into a full-fledged multiparty democracy with an independent and powerful judiciary. The proposed bill challenges the preamble of the constitution. Unfortunately, the task is going on under the leadership of a party that fought a three-decade battle to restore democracy.

Despite some grievances against the judiciary in Nepal, the past decade has seen landmark successes. One may disagree about the implications of its decisions, but it has asserted its power to the full limit in most crucial and sensational cases.

Whether it was in a case of interpreting the power of the government to enter a treaty on sharing water resources with another country or the power of the prime minister to recommend the King to dissolve of parliament or safeguarding the interest of the people, the Supreme Court has discharged its constitutional responsibilities with great accomplishment.

The role of the judiciary in Nepal may not look very prominent compared to its counterparts in the western democracies. But there are several countries such as China, Vietnam and Cambodia, which are completely unfamiliar with the basic concept of independence of the judiciary.

These countries are trying to build up the institution from the ground. The judiciary in Nepal has a proud history of more than 50 years. If judges are under the scrutiny of the executive and they will be disciplined by the executive like in the Panchayat days, when they were dictated to by the secretaries in the Royal Palace. The judiciary has suffered much in the past when judiciary was under the grip of the executive. It was always difficult for judges in the past to risk the wrath of the executive.

Seeing the performance of the CIAA in the recent past, one can easily guess how the CIAA will treat justices and judges. No one in the CIAA has qualifications matching those of Supreme Court justices and some of the commissioners have qualification in administration, business management and auditing. Even chief commissioner himself is indicted for irregularities in the CIAA’s report.

What is the motive behind the MPs of a democratic party to antagonize and show total disrespect to democratic values and the independence of the judiciary? When every student of law knows that the moment the amendment becomes law and is challenged in court, the legislation will be declared null and void on grounds of unconstitutionality.

Then why the futile exercise? It is interesting to observe that attorney-general of the government himself had advised against it at a stage of drafting and before the State Affairs Committee. Who are the official and constitutional advisers to the government and legislature. Ultimately, who has to defend before the court in case of challenge? So whose interest does this disregard serve? Observers are at loss to understand.

It is a failure on the part of the legislative function of parliament as MPs seem to have no time to read the constitution and see the implications of their actions. Why would one want to antagonize and show total disrespect to democratic values by a democratically elected government is the million-rupee question. Is this because of their ignorance or is it an intentional effort to destroy a pillar of democracy the constitution has entrusted with protecting the rights of the individual?