• Draft constitution

KATHMANDU, July 19

Constitutional experts say the draft constitution does not ensure independence of judiciary, a cardinal feature of democracy.

Advocate Dinesh Tripathi said the framers of the constitution had to mention independence of judiciary in the unamendable provisions of the constitution.

He added that the draft constitution had not proposed to put judges in majority in the Judicial Council, which means political parties can monopolise the appointment of judges.

Article 105 (2) of the draft constitution states that the judges can be impeached for not performing their duty honestly. “This is a vague word and is against the principle of independence of judiciary,” Tripathi said.

Advocate Bipin Adhikari said Article 284 of the draft constitution, which stipulated that all the chiefs and office bearers of the constitutional bodies should be accountable to Parliament and their performance would be monitored and evaluated by the thematic committees of the House of Representatives, was objectionable.

Adhikari said supervision of constitutional bodies by the parliamentary committees was against the principle of checks and balances and independence of judiciary.

“In parliamentary forms of governance, Parliament is controlled by the ruling party, and therefore, putting constitutional bodies, particularly the judiciary, under parliamentary committee’s supervision is wrong,” Adhikari argued.

He said if judges’ performance was evaluated by the parliamentary committee that could give rise to a feeling among the judges that they should please the political parties to secure their confirmation.

Adhikari and Tripathi said the provision of parliamentary hearing for judges was unnecessary.

Tripathi said the concept of parliamentary hearing came from the US, where unlike the parliamentary system the Head of State directly appoints the justices of the Supreme Court. “In a parliamentary system judges are appointed by Judicial Council so there is no need for parliamentary hearing,” he said.

Adhikari said if judges were subjected to go through the parliamentary hearing process that should be done by the Judicial Council itself or a non-parliamentary panel.

Tripathi also said the draft constitution’s provision to have the chief justice of the Supreme Court in the Constitutional Council was against the concept of independence of judiciary.

“The recommendations of appointment made by the Constitutional Council can be challenged in the Supreme Court but since the chief justice is a member of the CC, how can the apex court take up such case?” Tripathi wondered. Tripathi said the restrictive clause of Article 134 (4) of the draft constitution conflicted with the concept of independence of judiciary as it stated that perks and privileges of judges could be reduced during fiscal emergency. “If we want to have an independent judiciary, judges’ perks and privileges should never be reduced,” he argued.

The draft constitution, Tripathi argues, does not mention that the verdicts of the high courts will be binding for lower courts that are under its jurisdiction but in a federal set-up high courts should also be treated as courts of records.

Adhikari said the provision of Constitutional Court itself was not against the principle of independence of judiciary.

Expertspeak

• Independence of judiciary should be mentioned in the unamendable provisions of the constitution
• Supervision of constitutional bodies by the parliamentary committees was against the principle of checks and balances and independence of judiciary
• Putting constitutional bodies, particularly the judiciary, under parliamentary committee’s supervision is wrong
• The provision of parliamentary hearing for judges is unnecessary