SHYAM PRASAD MAINALI
The judiciary plays a significant role in interpreting constitutional complexities, applying law and adjudicating controversies between two persons as well as between the citizens and the state. It safeguards the constitution by keeping all state authorities within the constitutional framework. In any democratic set up, the independence of the judiciary is important for evaluation. It must be absolutely free from any type of pressure from legislative and executive bodies, only an independent judiciary can maintain the check and balance between the three state organs (judiciary, legislative and executive).
To deliver justice in an appropriate manner, the judiciary has proved to be a cornerstone of popular democracy and embraces the internationally recognized fundamental principles such as judicial autonomy, freedom of expression and association, professional immunity, etc. In the absence of a fully autonomous and independent judiciary, law and order situation becomes beyond state control, and ultimately resulting in chaos and anarchy.
In federalism, different types of judicial practices are in use. The role of the judiciary in federalism is crucial. In a federation, the need will arise for a final arbiter in the process of settling disputes. Which level of government has to exercise the power to act in a particular case? Throughout all federal regimes, the judiciary has proved to be an appropriate choice to work as a final arbiter having the quality of legitimacy, impartiality and procedural guarantee that ensure that it will continue with such qualities. So, in federalism, people and the government must respect the decisions taken by the courts of different levels. However, it needs the support and co-operation of all the actors for resolving complex issues and problems efficiently.
The jurisdictions of different levels of court have been matters of debate in every federal structure. The logic is that if judges of different levels of court are elected, accountability of the court towards the people will be maintained. If we are really committed for the management of federalism, the three main organs of states must be accountable towards the people directly. Any intervention on any ground from the centre is not acceptable in federalism.
In contrast, the centrally controlled government system lacks transparency, and accountability.
The judiciary is seen as an interpreter and protector of rule of law. The nature and degree of autonomy can be different.
We have an independent judiciary to date. However, questions are being raised in the process of restructuring judiciary in the new constitution. To democratize the judiciary, some have the opinion that judges of other courts, except the apex one, should come for balloting for five-year tenure, to make them accountable to the general people, otherwise it cannot be democratic and independent.
The courts and law enforcement agencies in democracy can hardly be transparent and effective, if they remain under central control. Despite the opinion of different scholars, the Maoist party presented the proposal to the Constituent Assembly (CA) to keep the judiciary under parliamentary control. However, almost all the other political parties are in favour of independent and autonomous judiciary. Therefore, the issue of restructuring the judiciary is a most contentious issue in the CA.
Now, a question might be raised as to which institution or authority will interpret the constitution? How will checks and balances be maintained? The situation at present is not satisfactory. The rule of law is not effective, impunity throughout the country is encouraged, and the state machineries have been weakened due to political instability. To improve upon such a situation is very essential, and which is not possible without an independent judiciary.
In federalism, both levels of government must discuss, co-operate and share information so that problems of different nature can be settled. The role of interpreting federal law and national constitution in the constantly changing context is the jurisdiction of courts. However, proper attention should be given to make the judiciary transparent and accountable in a federal structure, otherwise democracy merely becomes bureaucracy, ultimately our federalism will be only a burden on the people.
To make judges accountable, they can be removed from their offices if proved corrupt and inefficient to discharge their duty. The proposal of impeachment could be presented in the parliament provided there are sufficient grounds.
The privileges enjoyed by the Nepalese judiciary need to be reviewed to make for transparency and accountability. Therefore, what sort of federalism are we going to accept? How will such federalism be able to address the popular will and aspirations of the changing society? What sort of realignment would be preferable and efficient? How do we catalyse the movement towards the destination? These are the potential areas that calls for lively discussions and thoughtful deliberations in the CA, before restructuring the judiciary.
Mainali is Secretary,
Government of Nepal