SC’s five-year strategic plan must be scrapped

Former justice of Supreme Court Bala Ram KC wants the five-year strategic plan of the Supreme Court scrapped so that judges can focus on delivering qualitative judgment rather than the number of cases. Ram Kumar Kamat of The Himalayan Times spoke to him on a number of issues that could bring desired reforms in the Judiciary. Excerpts:

In a leaked audiotape former minister of communications and information technology Gokul Prasad Baskota was heard negotiating commission with a Swiss company agent in the security press procurement deal. What should the Commission for the Investigation of Abuse of Authority do now?

The anti-graft body can take suo motu cognizance of the matter as it has been widely reported in the press and launch its investigation against Baksota without waiting for anybody to file a complaint against the former minister. The CIAA must take the necessary documents in its custody and quiz the suspect. The CIAA must not say it can launch investigation only after somebody files a complaint against Baskota.

Let me cite a recent case. Kathmandu Police waited for an FIR to be registered against former speaker Krishna Bahadur Mahara accused of attempt to rape. Police should not have waited for an FIR to be filed against Mahara. At the time of the alleged incident, the victim (now after Kathmandu District Court delivered an acquittal verdict, the accuser is not a victim anymore) said she was raped by Mahara. Police should have secured the alleged incident site immediately and sent the victim to hospital for medical examination. Similarly, in this case, when the audiotape was leaked to media outlets, the CIAA, which is constitutionally empowered to investigate corruption cases, should have initiated immediate investigation against Baskota.  Immediate investigation is launched in such cases to ensure that vital evidence is secured.

Interrogation by law enforcement agencies is not a human rights violation.

What process do you think investigators should follow in the Baskota case?

First of all, investigators should test the voice in the audiotape. A lot of burden of proof lies on Baskota. All suspects tend to deny the accusation, but evidence must speak. As far as investigation of criminal allegation is concerned, efficient investigators know that a dead man tells them who killed him and why and how many persons were there to kill him. The dead man also tells investigators his age, identity and family details. Therefore, the art of investigation comes into play as far as investigation of a criminal case is concerned. Unfortunately, in our context the CIAA has been converted into a retired secretaries’ place of employment, as often, retired secretaries are appointed as office bearers of the anti-graft body.

This practice goes against the spirit of the constitution that says highly trained people should be appointed in the CIAA.

Prime Minister KP Sharma Oli has been saying he has zero tolerance towards corruption. What should he do now?

Nepali people have the right to be governed by a physically and mentally healthy prime minister but the PM is not in the pink of health. Lalita Niwas land grab case, Yeti Holdings case and now Baskota audiotape scandal have rocked the government. In the Lalita Niwas land grab case, the CIAA said a new law should be made to empower the CIAA to investigate against policy corruption. If the PM wants to live up to his pledge to ensure good governance, he must show courage by bringing a new bill in the current session of the Parliament empowering the CIAA to investigate cases of policy corruption.  The executive is never above the law. In a country, state affairs are governed by the rule of law.

What legal and other reforms are needed in our country to control corruption?

Anna Hazare’s movement in India was to establish Lokpal in India, much like our CIAA because it seemed that the ruling party was using the anti-graft body to witch-hunt its opponents.

In our country, anti-graft body was established in the Panchayat era after the second amendment to the Panchayat Commission incorporated provisions related to it. Commissioners of the CIAA are as independent as Supreme Court Justices, but they misused their powers because they never showed the art of investigation required for their jobs.

Former bureaucrats, who retire from service after 58 years of age, might have knowledge of official work such as preparing and endorsing notings, but they cannot have experience of criminal investigation. Therefore, the current system that allows the government to appoint former bureaucrats in the CIAA is flawed. The first reform should begin here by amending the constitution and barring former bureaucrats from becoming CIAA office bearers. Political leaders should look for competent candidates and not somebody who can save them in the future. I think, the best thing would be to appoint former AIGs with clean image as commissioners of the CIAA. Other members who could be appointed as CIAA office bearers are the top trial lawyers. Our Constitutional Council has been betraying the founding fathers of the constitution by recommending former secretaries as office bearers of the anti-graft body. Major parts of the CIAA’s investigation are carried out by civil servants who are brought to the anti-graft body from various departments of civil service. CIAA office bearers’ only role is to take a call on whether or not to file cases against the accused.

CIAA office bearers are there not only to okay the lower level staff’s investigation, but to carry out investigation themselves and they should do it at least in high profile cases. These former secretaries have made the CIAA a replica of government ministries. Those who are involved in the investigation of cases at the CIAA should be made to undergo comprehensive training.

Are you satisfied with the role the Judicial Council is playing at present?

The present structure of the Judicial Council where the chief justice is the chairperson and senior-most justices the members must change because the JC that acts as prosecutor in corruption cases involving judicial staff should not do so in a democratic country.  There should be a separate body in the judiciary to investigate corruption cases on par with the CIAA. Unless there is a CIAA-like body in the judiciary to look into allegations of corruption, major reforms cannot be introduced in the judiciary. Only sacking judicial staff accused of corruption or summoning them to the Judicial Council cannot solve the problems. The CJ and senior-most judges should not be members of such a body because that would be against the principle of fair hearing.

New Chief Justice Cholendra Shumsher JB Rana gave a sense of reform in the judiciary by taking some firm action against anomalies seen in the judiciary, but later, he did not continue the pace with which he initially acted. What do you say?

The first thing that the CJ should do is scrap the five-year strategic plan. In a democracy you cannot tell a judge to adjudicate a certain number of cases within a certain period. A judge should not be promoted on the basis of the number of cases he/she adjudicates because justice hurried is justice buried. A judge should analyse the evidence of the case carefully before delivering his/her justice, but the strategic plan gives emphasis on the number of cases adjudicated in certain timeframe. Strategic plan should be only for building infrastructure in the judiciary.

What other reforms do you think should be introduced in the judiciary?

If we have to reform the judiciary, then a separate Constitutional Court must be set up to handle constitutional cases. When Sushila Karki was the chief justice, she did not form the constitutional bench which prompted the SC bench to issue a writ of mandamus to Karki telling her to form the constitutional bench. We must remember here that the SC’s primary duty is to interpret the constitution. As per the SC Regulation, the SC has appointed constitutional bench experts. This is against the principle because constitutional bench itself is an expert on the constitutional issues. Apex courts can form expert committee to seek its opinion on some crucial public interest litigation case. Indian Supreme Court sought the opinion of Archaeological Survey of India to know what was there beneath the disputed site in Ayodhya — a temple or a mosque. The CJ must make efforts to ensure amendment to the constitution so as to have a separate Constitutional Court where the justices should have at least 10 years’ tenure. Five or seven members of the Constitutional Court justices should sit together to conduct hearing. There should be no provision for having single or division bench in the Constitutional Court. Appointment of justice in the Constitutional Court should not be made by the JC because we cannot trust the JC which has been overly politicised in recent years. A separate body comprising the prime minister, leader of opposition, speaker, chair of the National Assembly and a noted jurist, who has crossed the age of 65, should select the justices of Constitutional Court  from among the constitutional lawyers but there should be no age bar. Only then the Constitutional Court can ensure speedy justice.

The first draft of the constitution had provisioned for the Constitutional Court, but there was a faction at the Supreme Court who wanted the provision to be removed from the constitution. I was always in favour of the Constitutional Bench. Those who were against the Constitutional Court within the SC wanted me to retire soon so that they could lobby the politicians for removal of the provision. The Constituent Assembly also made a mistake because it did not tell those who were against the formation of the Constitutional Court that judiciary should be as per the constitution and not vice-versa.

The CA should have told the SC justices that if they only want provision for the constitutional bench, then they should not seek incorporation of a provision relating to the constitutional bench in the constitution as it would have been enough to incorporate a provision in the SC Regulation about the constitutional bench.

At present, the constitutional bench cannot hear a case if the CJ has a conflict of interest. There are five other judges and if any judge is absent for any reason, and then the JC must make a decision to replace the judge. This is ridiculous. The previous CJ who lobbied against the Constitutional Court did so with the motive of leading the constitutional bench.

The process to appoint justice in the SC must also be amended to bring the most qualified persons in the apex court.

High Court must be empowered. In India, not more than six- seven justices were appointed in the SC from among the layers. If you look at the recent appointments of justices at the SC, you will see those lawyers who had never pleaded in constitutional cases were appointed as justices. Those lawyers who were pleading at district courts who had no knowledge of judicial governance were appointed as Supreme Court justices. How can such people deliver justice? In India, the appointment making body looks for those candidates who have made outstanding contribution.

When Padam Prasad Baidik resigned from the JC recently in an attempt to become an SC justice, Nepal Bar Association and lawyers opposed it. The JC faces the charge of being influenced by political leaders. What do you say?

There should not be a representative of the prime minister in the JC and in the place of Minister of Law, Justice and Parliamentary Affairs, only the attorney general should represent. I am for AG because he/she will go back to legal practice. There must be CJ and senior-most judge and noted jurists. If that happens, then the JC can act without being influenced by political leaders. Thirty newly appointed judges went to the former CPN-UML’s headquarters to show their gratitude to the party. This shows how politics is influencing the appointment process in the judiciary.