KATHMANDU: Control and freedom are two different, yet fundamental entities in a democratic set-up. If the checks and balances are not in place, then it can lead to autocracy, anarchy and several other anomalies in

a political system.

This is the guiding principle, which governs all three major state organs — the legislature, executive and judiciary. This brings to the fundamental question, which has been raised after a Constituent Assembly (CA) committee recently proposed to bring the judiciary under the control of legislature-parliament. The CA is mulling over the panel’s proposal.

The nation could be beset with a totalitarian regime if the proposed judicial provisions were incorporated in the new statute.

Judges, legal experts and a majority of parties — save the Maoists — and political scientists are all apprehensive of the proposal.

However, it is not a cakewalk to ratify the provision at the CA meeting.

As per the rule, it requires a two-third majority in the 601-member CA to endorse the move.

Going by the current strength, neither the main opposition — the Unified-CPN-Maoist, which accounts for 40 per cent of the seat in the CA — nor other parties can muster the magic figure on their own. Hence, consensus is the key to push through these

proposals in the CA.

Be that as it may, the provisions have raised a few

serious questions about the future political system.

The Maoists insist that they want to make judiciary accountable to the elected members in legislature-parliament.

But their argument has found few takers. The ex-rebels opine that the

judiciary has been “biased and inefficient in the past” due to lack of civilian

supremacy.

They also maintain that the provisions do not curb the judiciary’s independence. But their rivals have a counter-argument. A party with a majority in legislature-parliament will automatically have a stranglehold over the judiciary. And, that’s where the fear of autocracy stems from.

How politicians are split down the middle

Dev Gurung, Maoist CA member: The judiciary is now of bounds for a vast majority. It is neither transparent nor accountable. The provision of impeachment against apex court judges has also become defunct. The provisions are aimed at a new scientific system for the judiciary.

Agni Kharel, UML CA member: The provisions are a step towards a totalitarian regime. They are against standard democratic norms, flouting the basic tenets of constitutional supremacy and federalism.

Abhishek Pratap Sha, MJF CA member: The proposals uphold the concept of

inclusiveness and federal structure. This will help

appointment of right candidates in the judiciary.

CP Mainali CPN-M-L CA member: The proposals are out of place since the nation is planning to adopt the

people-oriented capitalist democratic system.

Controversial provisions put forth by the CA committee on judiciary

1. Reappointment of judges

after promulgation of the

new constitution:

• CA Committee Report: All judges should be reappointed within three months of the

promulgation of the new

constitution.

• Divergent View: If the vacant posts could not be filled within the timeframe, then it would create vacuum in the judiciary. The issue should be left to

the Constitutional Committee’s discretion.

2. Qualification of the Chief

Justice

• CA Committee Report: A law graduate, who has worked for 15 years in the legal sector, can be appointed as the CJ of the Federal Supreme Court (FSC). The principle of inclusiveness can be implemented in such

a provision.

• Divergent View: This will lead to appointment of a politically-indoctrinated individual as a CJ. Besides, the judicial administration will become unstable as and when there is change in the political leadership. Also, a person, who does not have the relevant background, will not be able to perform well.

3. Mechanism for appointing judges:

• CA Committee Report: There will be central and provincial mechanisms for appointing judges in view of federal set up.

• Divergent View: A judge appointed by a province may not be acceptable to another. There can be lack of uniformity in interpreting the law across the nation. Hence, the central-level mechanism should appoint judges for the FSC and the Provincial High Courts.

4. Parliament or Judicial Council to appoint judges and will be empowered to take action:

• CA Committee Report: There will be a special parliamentary committee in both federal and provincial parliaments to appoint the CJ or judges. Such committee will not only recommend the names for appointing judges but can also take action against errant officials. A simple majority in parliament will approve the recommended names. This will make the

judiciary more accountable to people.

• Divergent View: This will curb judicial independence since the party that has the majority in parliament will call the shots. This concept belies separation of power and federalism. To make matters worse, the fear of a totalitarian regime looms large, which is detrimental to the nation.

5. Parliament or the FSC to interpret constitution and law:

• CA Committee Report: The right to interpret the constitution and law will rest with the special parliamentary committee on appointment to high offices, political matter and laws that contradict with the statute. The present judicial system has proved to be a laggard as far as speedy dispensation of justice is

concerned.

• Divergent View: This is a hallmark of an autocratic nation since the power lies with a central state organ. The FSJ and Provincial High Courts of the land are best suited to interpret the constitution and law.