KATHMANDU, OCTOBER 30
Jurists are of the view that Chief Justice Cholendra Shumsher JB Rana's resignation won't ensure the much-needed reform in the Judiciary and there is also need for structural reform to rectify flaws in the prevailing laws.
CJ Rana stands accused of seeking to appoint his brother-in-law minister in the Sher Bahadur Deuba Cabinet, and delaying hearings of cases filed against appointments to constitutional bodies.
President of Supreme Court Bar Association Purna Man Shakya said their fight for cleaning up the judiciary would not stop with ousting CJ Rana. "We will form a committee to identify flaws in the laws and the constitution that are at the root of the alleged quid pro quo between the judiciary and executive," he said, adding that a team would prepare a report within two months, and the SCBA would pressure the government and political parties to amend laws to address current issues.
Shakya said the parliamentary hearing system was a major reason behind political interference in the Judiciary as chief justice and justice nominees felt the need to visit political leaders seeking their blessings for parliamentary confirmation.
Shakya said the chief justice should be removed from the Constitutional Council, which makes appointments to constitutional bodies.
He said the Judicial Council should be given authority to conduct public hearings to maintain transparency.
Shakya said that the committee to be formed by the SCBA would also look into ways to check the CJ's monopoly at the Judicial Council while nominating judges.
Senior Advocate Gandhi Pandit told THT that ousting CJ Rana would not help rid the judiciary of political interference and alleged quid pro quo between the executive and the leadership of judiciary. He said the composition of the JC - where the Judiciary had just two representatives - chief justice and senior-most justice of the SC, must change to give majority to the Judiciary in this body that nominates judges.
Currently, minister of Law, Justice and Parliamentary Affairs, one nominee of the prime minister, and one nominee from Nepal Bar Association are JC members.
According to Pandit, three representatives - law minister, the PM's nominee, and NBA nominee - serve the interests of the executive.
If the executive can keep Justices under its grip, an ordinary citizen who challenges the government cannot get justice from the court, he argued.
Retired professor of law, Yadav Kumar KC also said the structure of the JC should be changed to maintain majority of judges so that the executive cannot influence the JC decision. "It should be a mix of collegium system and JC because in India we see that the executive has the power to approve the collegiums' decision," he added. He said the NBA should not be allowed to send its representative to the JC.
CPN-UML leader Subas Chandra Nembang said he had played a role in introducing parliamentary hearing for SC Justices and CJ nominees. The provision itself was not bad. "We supported parliamentary hearing because we believed that those wanting to become SC Justices or CJ would act responsibly to win the confidence of the panel, but we see those responsible for implementing the provision are not doing so as per the spirit of the constitution."
He added that the Interim Constitution did not intend to make the CJ the chairman of the Council of Ministers and yet political parties allowed the then CJ Khil Raj Regmi to become one.
A version of this article appears in the print on October 31, 2021, of The Himalayan Times.
