• FACE-TO-FACE
Advocate Raju Prasad Chapagai is a Kathmandu-based public interest lawyer and researcher. He co-founded and served as president of the Justice and Rights Institute (JuRI-Nepal) and the Constitutional Lawyers' Forum. He formerly worked as a South Asia researcher for Amnesty International, where he focused on transitional justice and economic, social and cultural rights. He also advised the UN Office of the High Commissioner for Human Rights in Nepal on a wide range of human rights issues during the crucial post-conflict period (2007-2012). Ram Kumar Kamat of The Himalayan Times caught up with him and discussed issues of judicial reform and human rights. Excerpts:
What are the issues of reform in the judiciary?
As a member of the legal fraternity, I have a firm conviction that if the judiciary goes wrong, nothing goes right. As the judiciary is the final interpreter of the constitution, its role is obviously crucial in a democracy. The judiciary has contributed tremendously to shaping and developing democratic systems in many countries (e.g., India, the US, and South Africa). The Indian judiciary's role was remarkable during emergencies.
It boldly checked the excesses committed by the Indira Gandhi government, including through its groundbreaking decision in the Keshvanand Bharati case, where it defined the basic structure and prevented the Parliament from abrogating the basic values of the constitution through amendments.
Undoubtedly, our Supreme Court has also delivered crucial decisions to check executive and legislative excesses in many contexts. But the overall performance of this organ is still not satisfactory, and the reason for this lies in the faulty process of the appointment of judges. Apparently, major political parties tend to recruit their favourites in the judiciary, particularly in the Supreme Court and high courts. The current structures of the Judicial Council that nominate judges are also flawed because the executive branch maintains a majority in this body.
The minister of Law, Justice, and Parliamentary Affairs is obviously an executive member, and there is one jurist appointed by the prime minister. Nepal Bar Association, which is mostly hijacked by political parties, also sends a member of the bar association to the JC based on political considerations. All these three nominees somehow serve the executive branch's will in making appointments in the judiciary. The JC structure therefore should be changed to maintain the judiciary's majority, although we know that the judiciary's representation has not been satisfactory. Let's consider a recent example.
The JC made a controversial recommendation to appoint a judicial officer as a judge for the district court. The officer had actually failed the written test for the same. I believe that it would be better if the representatives of the judicial branch were in majority in the judicial council and tried to act wisely.
Not only that, each and every problem in the judicial appointment system must be identified and fixed. For this purpose, it is vital to conduct a thorough review of the current rules, methods, and policies guiding the selection process. They should be revised in the light of internationally accepted standards and best practices. The judicial appointment process should be strengthened with the insertion of requirements for a mandatory background check of the candidate, an open and transparent selection process (advertisement of vacancies, public vetting of candidates, and evaluation of candidates against pre-determined selection criteria), and the duty to disclose the reasons and grounds for the appointment.
I also think that there is need for some therapeutic measures to rebuild public trust in the courts, which has been severely eroded. We can learn lessons from other countries.
The judicial vetting system that Kenya employed could be the one to learn from. All judges were required to undergo a rigorous process of vetting against the specified criteria. We should carefully assess what worked and what didn't work and adopt suitable measures to clean up our judiciary.
What's your observation about impeachment and parliamentary hearings?
The impeachment provision has become a tool to scare judges because the Parliament has not taken any impeachment proceedings to a logical conclusion. It should be used wisely and as a last resort. The parliamentary hearing system has simply become a ritual, and that too needs to be thoroughly revamped.
What other reforms in the judiciary do you recommend?
Well, there are definitely other pertinent issues to be considered for reform. The chief justice appointment process also needs to be revisited.
A new provision has to be made to ensure that SC justices who have at least two years of job tenure can be appointed as chief justice. This was actually proposed in the course of the drafting the constitution, but later it was dropped without legitimate reasons. The leadership of the judiciary should be stable for a substantive period of time. Appointment of a CJ for a very short period (e.g., three months or six months) is likely to make the judiciary vulnerable to extroverted interference.
Another reform that needs to be made in the judiciary is in relation to the constitutional bench. The provision related to the constitutional bench was incorporated in the constitution mainly for the purpose of federalism and to promote the enjoyment of fundamental rights, but the constitutional bench has not been able to meet people's expectations.
There are a lot of cases that have been pending before the constitutional bench for years. The bench sits occasionally, and it cannot adjudicate all the cases in the expected time-frame. And the lack of timely appointments of judges has also contributed to delay in justice.
I think it is important to have a constitutional brain on the constitutional bench rather than a number of judges. If the constitutional bench continues to remain ineffective, the demand for a standalone constitutional court will resume sooner or later.
Relaxation of procedures for the initial/justiciability hearing is also a must. We should also think of entrusting the high courts with judicial review power over provincial and local laws in order to promote access to justice and enhance the accountability of sub-national governments towards the constitution. Financial autonomy is also important for the judiciary. The Judicial Fund Act was enacted in 1986.
The revolving fund established under the same Act has billions of rupees in it, yet the government has not framed regulations to enable the judiciary to use that fund as appropriate. The government, which needs to deem investment in the judiciary as investment for development, has not made enough investment in the judiciary, thereby affecting access to justice and service delivery.
The Nepal Bar Association recently opposed the amendments made to the Judicial Council Regulation altering the seniority of incumbent judges. What are your views on this?
This is apparently a wrong move by the JC because the amendment would adversely affect the incumbent high court judges whose seniority had been determined by the prevailing law before this amendment was made. The judiciary should always maintain a high degree of compliance with pre-determined legal norms. The flawed provision inserted in the regulation should be corrected.
The Parliament hurriedly made some laws related to fundamental rights, but some regulations have not been framed yet. What do you say?
The government appears to be under the impression that it completed its duty by enacting some acts to facilitate the enjoyment of fundamental rights, but the constitution says that the government shall make necessary laws to enable the enjoyment of fundamental rights. Laws do not mean only acts but also a whole set of legal infrastructure, including regulations, directives, and standards. It's ironic that the government has failed to formulate regulations that are necessary to implement the Right to Food and Food Sovereignty Act and the Right to Housing Act. Five years have elapsed in vain. Protracted governmental inaction has created a barrier for the marginalised and disadvantaged communities to claim their economic and social rights. On the contrary, there are many instances where federal and local authorities have violated these rights, including by carrying out forced evictions from informal settlement areas and street vending sites.
You had filed a case seeking to bring Cabinet decisions under the purview of the Commission for the Investigation of Abuse of Authority. Why do you think Cabinet decisions should be probed by the CIAA?
Corruption, in fact, has huge implications for human rights. Corruption indirectly kills people living in poverty. It's not a victimless crime.
The theft of public revenue results in hunger, severe food insecurity, and deprivation of access to basic health care services for disadvantaged groups. The slogan of zero tolerance against corruption must be translated into reality. Still, there are state-protected legal provisions responsible for promoting corruption at a higher political level. Section 4(b) of the CIAA Act provides that collective policy decisions of the Cabinet and Cabinet committees cannot be probed by the anti-graft body. This provision has been misused to bypass CIAA investigation into numerous controversial decisions of the Cabinet. The constitution has not allowed such an exception in the name of policy decisions.
The federal government, which was supposed to fix this flawed provision, surprisingly introduced a new bill proposing to extend this immunity to the provincial government. If this proposal is sustained, then the local governments could also seek similar immunity because they also exercise executive powers. There are more examples of retrogression.
The government has proposed in the recent bills it registered in parliament that there should be a five-year statute of limitation in corruption cases. This also goes against the constitutional imperative to establish good governance. I want the political forces not to wait for judicial intervention. They should realise the mistakes made in the past and fix them without ifs and buts.
The constitution has incorporated more fundamental rights than any other constitution of the past, but do you think people are able to enjoy all those rights? No. There is no conducive environment for marginalised, excluded and disadvantaged communities to enjoy fundamental rights. I already touched upon the pathetic situation of their implementation, in particular, economic and social rights. Let me highlight the point here that root causes of the decade-long armed insurgency and many other political and social movements were longstanding discrimination, exclusion and denial of economic, social, and cultural rights. Causes of the conflict are still prevalent in our society, as people are still deprived of their economic, social, and cultural rights.
Recent protests by loan shark victims in Kathmandu, discrimination on grounds of caste, grievances of indigenous and local peoples living around national parks and conservation areas, forced evictions of landless settlers and street vendors, exploitation of peasants, lack of employment opportunities within the country, rampant corruption, and bad governance at all levels show signs of simmering conflict in the country. In Kathmandu, we have seen metropolitan representatives chasing away street vendors without giving them the option to vend their stuff for a living. All this does not bode well for the country.
New political parties have emerged after the last general elections. Are you hopeful that they will pursue the agenda of reforms aggressively?
I do not think they have succeeded in proving themselves fundamentally different from the old political forces. Look at Rastriya Swatantra Party. This party could have raised the valid issue of people's serious concerns, particularly the issue of social justice, but I have not seen any RSP lawmakers raise these issues in a strategic and synergistic way. I haven't also seen RSP or any other new party move a single private bill in the House. If they want to sustain, they need to walk the talk.
A version of this article appears in the print on October 7, 2023, of The Himalayan Times
