The Parliamentary Hearing Committee recently rejected chief justice nominee Deepak Raj Joshee. Nepal Communist Party (NCP) lawmakers have warned they will impeach him if he continues to work as Supreme Court justice, sparking a debate on whether Joshee’s rejection is enough ground for impeaching him. Ram Kumar Kamat of The Himalayan Times talked to senior advocate and former attorney general Mahadev Yadav about some issues confronting the judiciary. Excerpts:

Some ruling NCP leaders are saying Joshee should be impeached if he continues to serve as a Justice. What is your take on this?

The constitution has provisioned the Judicial Council as a permanent body which sends the roster of potential candidates for chief justice. As per constitutional provisions, justices who have served in the Supreme Court for three years, qualify to be nominated for the post of CJ. In principle, the Constitutional Council should be aware of the work performed by the justices. The CC, however, does not seem to have considered this aspect while recommending. People often complain that judges are appointed mainly on the basis of quotas allocated to political forces. When the Constitutional Council nominated Joshee as CJ, it followed the old practice of nominating the senior-most justice for chief of the judiciary. The PHC also broke a 27-year-old practice by rejecting the CJ nominee. While the rejection cannot be called illegal, it is a departure from the established practice. The CC should also take moral responsibility for recommending the CJ.

I think the PHC hearing was depthless and not bereft of political bias. The Judicial Committee of the Parliament should have listed the achievements and contributions of SC justices as well as their conduct. PHC members too should have questioned the CJ nominee on the basis of records provided by the Judicial Committee. PHC’s decision to conduct a hearing after giving 15 days’ time to the public to lodge complaints against the CJ nominee is not appropriate. Such a system can ruin a judge’s prestige earned over a long career.

Whether Joshee should resign or be impeached are new questions in judicial history because every justice who has served in the SC for three years qualifies to be nominated for CJ. If a junior justice is recommended as the new CJ that does not mean senior justices, who are not nominated, should resign.  This means the constitution itself has envisaged that a senior justice might face a situation when he or she will have to work as a junior justice. Therefore, there is no question of impeaching Justice Joshee if he chooses to work as a junior justice. The brahmastra (the ultimate weapon) of impeachment should only be used with prudence. Therefore, like the change brought about by the PHC, Joshee should also think of creating history keeping in mind the issue of seniority. As it is up to Joshee to think about his resignation, it is also up to the lawmakers to decide whether or not it will be prudent for them to impeach him.

Some say Joshee’s rejection can adversely impact independence of the judiciary. What do you say?

When judges are appointed on the basis of political affiliation and when the PHC conducts hearing on the basis of political influence, independence of the judiciary can be affected. The judiciary gets divided. When Gopal Prajauli was the CJ, one justice boycotted his bench. Political influence has led to anomaly in the judiciary. Rejection of the senior-most justice for CJ has worried SC justices. They think they too might suffer the same fate in future. This means justices might think of tilting towards a political force that will ensure their chance of becoming chief justice.

Are you satisfied with the way the cause lists are published these days or do you think the system should be reviewed?

People have complained about the current system of cause list. The SC publishes cause list every morning. In order for the judiciary to rid itself of such complaints, it should end the current system of assigning cases to various benches on the basis of the chief justice’s discretion and the apex court should start assigning cases on the basis of the lottery in the presence of a representative of Nepal Bar Association. The cause list should be published only 15 minutes before the hearing time and not one or two hours before the hearing time as is the case now.

The judiciary is blamed for not ensuring easy access to justice, particularly for the poor and vulnerable sections of society. How can this change?

Various organisations, including the NBA and courts across the country, have provisions for providing legal aid to poor clients and vulnerable sections, including women and children. I think the court should set up offices of court attorneys for providing assistance to service seekers for drafting petitions, cases and legal documents. Until now, the courts have only provided lawyers to plead on their behalf.

People tend to hire renowned lawyers to boost their chances of winning cases. Do high profile lawyers who charge huge fees make any difference to the case?

I personally believe appointing a renowned lawyer does not brighten the chances of a client. Does a bench give more importance to a renowned lawyer? I do not know. When I was a young lawyer, I never felt the benches were not paying attention to my arguments. I am a Madhesi lawyer and I have never faced any discrimination because of my ethnic background.

Are you satisfied with the current process of judicial review?

The constitution of 1962 had provided formation of the Judicial Committee to review SC verdicts. Unhappy clients would file petitions with the committee, which would examine the petitions before sending the cases to the SC for review. Cases referred by the Judicial Committee used to be heard by a full bench. Almost seven per cent verdicts were overturned by the full bench during the Panchayat system. Breaking from the tradition of the Judicial Committee, The Constitution of the Kingdom of Nepal, 1990, provided for judicial review, but under this provision, the SC granted almost no leave for review, raising a question on the efficacy of the system. The Interim Constitution of 2007, provisioned judicial review but with a change in the system. The review of SC verdicts would be heard by other than those justices who had passed the verdict. But this system too was not effective. I am, therefore, in favour of the Judicial Committee reviewing the SC verdict as was practised in the Panchayat system. A Judicial Committee can be formed within the SC, where expert judges, possibly former justices or former chief justices could be appointed. They could be allowed to work until the age of 70.  Formation of such a committee is the need of the hour.

How do you evaluate the process of constitution implementation?

This constitution is very ambitious because it has guaranteed long lists of fundamental rights. As a lawyer, I don’t take it negatively, but when I think of the country’s economic condition, I do not think the country will be able to ensure all these rights.

I have always been in favour of federalism and secularism. The framers of the constitution did not heed relations between the different tiers of government. Ours is a quasi-federalism because most of the powers rest with the centre.

I think Provincial Assemblies should be bicameral because if you look at examples around the world, you will find that those countries that initially went for bicameral provincial assemblies did not have to revert to unicameral assemblies, but those countries that went for unicameral assemblies initially had to go for bicameral assemblies later.

I do not agree with those who view federalism as an expensive form of government. If we can manage the system well, we can also manage finances well.