National 4 (Spotlight Weekly)

‘The Judiciary Is Governed By A Bureaucratic Mindset’

— LAXMAN PRASAD ARYAL

LAXMAN PRASAD ARYAL, former senior judge of Supreme Court, has been in the legal profession for the last many years. Before his appointment to the apex court, Aryal was a practicing lawyer. A member of Constitution Drafting Committee, which formulated the present constitution, Aryal saw many ups and downs in his 11 year with the Supreme Court. Aryal spoke to KESHAB POUDEL in a room adorned with a deeply spiritual photograph on various issues, including the constitution, judiciary and constitutional way out of the current crisis. Excerpts:

After serving for about 11 years as a Supreme Court judge, how do you evaluate the role of the judiciary?

The Constitution of the Kingdom of Nepal 1990 has given an important role to the judiciary, but our experience has shown that the judiciary has been unable to perform that role. Although the constitution has given sweeping powers to the apex court to interpret the constitution and to strike down laws that are against the spirit of constitution, the domination of a bureaucratic culture has been hindering the process. Since most of the judges are promoted on the basis of seniority and the Supreme Court is regarded as the pinnacle the judicial career, nobody seems sincere about performing the important duty. The judiciary is not different from the civil service. Many of our colleagues in the Supreme Court used to mention their difficulties while working in various district courts and took the appointment at the Supreme Court as a dividend of their service in the remote parts of the country. So many promoted judges felt that the appointment at the Supreme Court was just professional privilege. When the apex court is dominated by the majority of promoted judges who are recruited at par with civil service regulations, a handful of persons appointed from the bar cannot change the tradition of the judiciary.

What are the reasons behind the frequent disputes in case of promotion, transfer and appointment of judges? One appellate court judge recently resigned citing discrimination in promotion. How do you look at the situation?

This is not the first such controversy. Many judges still have the hangover from the earlier system when judges were promoted on the basis of seniority. With the promulgation of the new constitution, the system of promotion was abolished keeping in the mind that the judges should be appointed in every layer on the basis of efficiency. In the executive branch, promotion is a mandatory system, but in the judiciary there is an appointment system.

Why did the judiciary opt for the appointment system?

There are more choices in the appointment system, since you can appoint people outside who are eligible and qualified in accordance with the constitution. You can pick eligible persons who are relatively junior but efficient. Promotion is based on seniority, but the appointment is based on efficiency and qualification. With an objective to bring more capable and efficient persons in the judiciary, the constitution envisages the merit system based on performance. Seniority and experience are also taken into consideration, but they should not be the sole basis.

How do you see the results of the merit system?

Before the promulgation of this constitution, the judges were appointed at par with the civil service and they were promoted on the basis of seniority and experience. But, the new system has changed the old pattern. Despite all these changes, over 95 percent of the judges are still appointed as in civil service. Appointments are made in upper court on the basis of seniority. The appointment system was introduced not to create any hurdles in the career of judges but to enable them to improve efficiency and academic qualification. The constitution itself has laid down the criteria for the appointment of judges. Whatever the constitutional system, the judiciary has the hangover from the past.

How do you see the process then?

We have rarely made efforts to follow the spirit of the constitution. Despite the constitutional provisions, we appoint people in the higher court on the basis of seniority and experience. In the apex court, seniority is still the basis for appointment. The result is that we are unable to appoint judges who are capable and efficient to cope with the changing situation. In the last 12 years, only a handful of judges have been appointed on the new basis.

Are you satisfied with the performance of the Supreme Court?

There is still a lot to be done. The judges of Supreme Court must have the capacity to interpret the constitution. Since the Supreme Court judges need to have their own judicial philosophy, such philosophy must be reflected in their decision. How can you expect that from those who are recruited in accordance with civil service regulations and are appointed to the highest court at the end of their career? Frankly speaking, the judiciary is governed by the bureaucratic mentality. The preamble to the constitution stresses the need for an efficient judiciary. To fulfill the constitutional obligation, we need independent and efficient judges.

How do you see the responsibility of judges?

Actually, the judges have higher responsibility in the apex court since they have to deal with complex constitutional matters and interpret them. The judgments of the apex court are equivalent to the law. If the judges are influenced by bureaucratic views, the constitutional obligation cannot be fulfilled. As long as people from the chief justice of Supreme Court downward are appointed on the basis of seniority, I cannot foresee any significant change.

At a time when the House of Representatives stands dissolved and the government has been formed under Article 127 of the constitution, how do you see the role of the apex court? Shall it play any role to end the constitutional deadlock?

As long as the three institutions of the state work in accordance with the letter and spirit of the constitution, the judiciary does not need to play an active role. When such institutions do not exist or exist just in name, an active judiciary is required. The role of the judiciary will depend upon the context of the country. Currently there is no legislature and executive visualized by the constitution. When the government is not making the acts, the Supreme Court can make judicial law. The apex court can break the constitutional deadlock.

It is alleged that judiciary's political involvement is also responsible for the present crisis. How do you look at it?

We always try to be impartial and apolitical while taking decisions. But I have already mentioned that every judge has his or her own philosophy. So, there may be some political influence in the decisions. But, in most of the cases, the Supreme Court has acted in accordance with the spirit of the constitution and it does not have any role in present political crisis.

But the country has seen many unholy alliances and deterioration in the political order following the decision of the apex court to reinstate of the House of Representatives in 1995?

It is not completely wrong. The politicians have made many mistakes. As soon as Girija Prasad Koirala dissolved the House prematurely in 1994 showing the resentment against the group of 36, it opened the period of uncertainty and instability. The legislature was working perfectly alright until 1994. The decisions were taken under the basis of constitution and laws. After the mid-term elections and formation of minority government and series of coalition government, the situation has changed. The political instability appeared as soon as Girijababu dissolved the House. Unfortunately, we all played the role of Kalidas and cut the tree. It is not the court and constitution but the political actors who are responsible for it. When the prime minister dissolves the House and the ruling party suspends the prime minister, how can you blame the court for the political crisis?

At a time when an institution like the Commission of Investigation of Abuse of Authority (CIAA) has secured enormous arbitrary authority and the new executive appointed under Article 127 is not accountable to the people, what can the judiciary do to check arbitrariness?

Power and authority will be exercised by those who can hold it and those who have the courage to exercise it. One cannot expect strong will from a person on the ground that the constitution has given enormous power to his or her position. The person who leads the institution must understand the authority he or she has. In a liberal democracy, the judiciary definitely plays a role to check unaccountable power of executive agencies and to protect individual freedom.

Don't you see the possibility of misuse of arbitrary power by the CIAA?

It is the apex court that forced the government to open the jurisdiction of the CIAA. The apex court issued directive to the government urging it to pave the way for the CIAA's exercise of constitutional power. The court even declared many clauses of the CIAA act null and void. The old law protected the prime minister, ministers and heads of other constitutional bodies and placed them out of the jurisdiction of the CIAA .We strengthened the hands of the CIAA. While exercising authority, precaution and a balance approach are required.

Do you think the freedom of the individual has no meaning in corruption cases?

I am not saying that. The rights of the individual must be protected before taking any action. In the name of investigation in corruption charges, no authority has the right to overlook individual freedoms and the rights propounded in the constitution. In filing a case against the corruption, the CIAA must not take a prejudiced stand. Every citizen must get a fair trial and justice in accordance with the constitution and law. If an agency exercises such sweeping authority in an arbitrary manner, it will turn into another authoritarian agency. Hitler was born in a similar manner. He respected the rule of law until he became chancellor. He emerged as a dictator with no faith in the rule of law after acquiring enormous power. In the name of implementing the law, we must not go to the other extreme.

Being a judge of the Supreme Court who interpreted the jurisdiction of the CIAA and declared many clauses of the erstwhile CIAA Act null and void, how do you see the present actions of the CIAA?

It is true that there was rampant corruption when the CIAA was inactive for many years. After launching its 'crusade', the CIAA has shown its presence in society. But it must take note and care of the constitutional value and rule of law. If the CIAA does not apply wisdom in exercising power, it will emerge as another authoritarian agency. It is a human agency, so there might be certain human weaknesses. Since the CIAA is a constitutional body, it should not work as a police organization. It cannot work on terror but must maintain restraint and prove itself as a legally effective organization to combat corruption. The CIAA is active now and it must continue to be active in containing corruption.

In the Civil Code Act, there is a provision for bail. It clearly says that concerned authorities must consider economic and other conditions of the person before demanding bail amount. But the CIAA is demanding excessive amounts of money and putting many people in the prison. Is this not against the principle that jail is exception and bail is rule?

In other countries, the court reduces the amount of bail if it finds it excessive. There were many instances when the Supreme Court cut the excessive bail demanded by the CIAA. There is a provision in law to demand the bail in accordance with the damage done by particular individual but the concerned authorities must see other reasons laid down by Clause 118 (10) of Civil Code Act on bail.

But the people have not seen such interpretations.

After my retirement, I received many complaints that the court always reduces the bail amount and helps to release the accused. Many come to complain to me that the court is releasing the culprit despite the charge-sheet of the CIAA. In respecting the popular sentiment of the people, there might be certain flaws. As a judge, we must be careful how public opinion is guided by certain vested interest group.

If we see the system of bail in India, the court always firmly stands to protect individual freedom and there are hardly any cases where court endorses excessive bail. Don't you think the judiciary in Nepal needs to follow a similar practice?

There is no doubt that the judiciary always stands for individual freedom. It is said that bail is the general rule and denial is exception. We must follow the concept before taking decisions on bail. Nepal and India have very different scenarios. In India, people hardly question the decisions taken by the court, but the situation in Nepal is different. In Nepal, you can see many adverse comments in Nepal. In a case in southern India regarding disqualification of Jayalalitha, chief minister of Tamil Nadu, the apex court interpreted that we cannot see the people but we can see the opinion expressed through law. The court dismissed the petition to remove the disqualification order. This shows that the court is not a place to judge populism. The court has always followed the law.

But the court in Nepal is very conservative and endorses the bail amount demanded by the police agencies?

Our people have different attitudes. They do not trust the court. If the court releases the people and reduces the excessive amount of bail, the people will suspect and complain that the court released the criminals arrested by the CIAA. Our citizens are yet to develop the attitude the rule of law. In many cases, the court also reduced excessive bail and released the people. In political cases, state-related crime and other matters, the controversy is understandable. Judges are condemned even in the case when the accused are released on the basis of law. Our tradition and situation are different. There is always a group of people who take issue on the basis of results, not on the basis of law.

Do you see any difficulties in tackling corruption cases?

There are many difficulties in front of the court. The court always interprets the law according to its spirit but the popular opinions always have certain influence. In the case of former education minister Govinda Raj Joshi, the apex court dismissed the demand of the CIAA to seek the jurisdiction over cabinet decisions. In that case, the general opinion was against Joshi, but the court acted in accordance with spirit of the law and constitution. The court always takes the case on the basis of words of laws and constitution. The problem in Nepal is that we don't have a law-abiding nature. Nobody believes in the constitution and law. From top to bottom, there is a tendency to violate the constitution. The present political crisis is also part of this trend. Many decisions are taken against the law. Violation of constitution and law is a crime against the sovereign people. Unless we follow the rule of law, democracy cannot function. Democracy is a system of self-rule. Our ancient kings also ruled on the basis of religion, not by decree.

You were a member of the panel that drafted the current constitution, which is facing its worst crisis. How do you look at the situation?

Unless people respect the constitution and affirm their commitment to the system, every constitution will be destined to meet a similar crisis. The constitution is just a document of words. If the actors do not have faith and commitment in the constitution, it cannot survive. Constitutionalism is not just writing the constitution but it is also a behavior. We need constitutionalism in action. If we do not follow the constitutional provisions, there is no use of having them. This is one of the best constitutions of the world. If you have bad players, there is no sense in having the best constitution. Implementation of the constitution is another matter. From the King to the lower level of population, everyone should follow the constitution. Everyone is exercising the authority on the basis of the constitution. If we are dishonest, there is no sense in having another constitution.

If this constitution is perfect, then why are some people demanding a constituent assembly?

It is not bad idea at all. But a constituent assembly alone cannot guarantee a good constitution. If we cannot work under an ideal constitution like this, then no constitution can survive in Nepal. Even if you have new constitution, you will have same type of people to exercise it. I don't see any rationale behind the demand for a constituent assembly. Who will guarantee that the new constitution formulated by the constituent assembly? The present constitution guarantees the freedom of press, powerful executive and sovereignty of people and independent judiciary. There is no fault in the constitution. I don't think any new constitution can be more liberal or wider than this constitution.

What will be the solution at a time when mainstream political parties are demanding the revival of the House of Representatives or the formation of an all-party government?

I have already expressed my opinion that the House is automatically revived in case the elections are not held in six months. Others have the opinion that the House can be revived under Article 127. When the country faces a constitutional crisis like this, one must find a way in which the constitution will be violated the least. In case of failure to hold the elections on schedule, the revival of the House is the only way through which the constitutional process can once again take place.

But others say the dead parliament cannot be revived?

You cannot search for a solution from outside the constitution. Revival of the House of Representatives is the least harmful choice. You cannot go against the constitution, but you can follow some less harmful ways. If the person is really committed to the constitution and constitutional spirit, he will opt for least harmful way out.

Maoist leaders and some constitutionalists have declared that the constitution is dead. How do you look at their comments?

I read the statements of some Maoist leaders and constitutional experts saying that the King's action has already torn the present constitution. I don't think it is torn. I have been saying that the recent action is against the letter and spirit of the constitution but it can be corrected by opting for the least-violation way. The King's action has affected the sovereignty of people. The King's declaration that he dismissed the prime minister exercising the authority derived from tradition was unnecessary. Even if circumstances appeared as it was in the past, it would have been done in accordance with constitution. Had the King cited Article 127 of the constitution as the source of power, the present crisis would have been averted. If there is a mistake in any part, there must be courage to correct it. Such action will enhance the prestige and glory of the institution since everyone can commit mistakes. Accepting mistakes is not weakness, but a sign of greatness.

How can the situation be improved?

At a time when the country is feeling relief following the cease-fire and peace talks with the Maoists, we must take appropriate steps to bring lasting peace by accommodating all the parties represented in parliament. Since this government has been appointed by the King, it does not have to defend the people. Only a popularly elected prime minister can defend the institution of monarchy and people. There is still a possibility to bring the Constitution of Kingdom of Nepal 1990 on the right track and start peace negotiations with the Maoists.