The judiciary is alleged of corruption and not delivering justice promptly. Recently, the President of Nepal Bar Association (NBA) Prem Bahadur Khadka accused judges of being the ‘root cause’ of corruption and irregularity in the judiciary. He made this remark on March 31, 2010 at a public function organized by the Supreme Court Bar to welcome the new Chief Justice Ram Prasad Shrestha and to bid farewell to retiring Chief Justice Anup Raj Sharma. Mr Khadka, at the same time, defended lawyers of being not being the root cause of corruption arguing “If the judges do not take bribes the lawyers do not offer them”. A similar observation was made last year by the then NBA president Biswa Kant Mainali that invited inevitable short time tussle between the Bar and the Bench.

Prior to 1990, NBA mostly defended the judiciary against such allegations.

Actually, judicial independence is not designed as, and should not be allowed to become a shield for judicial misbehavior or incompetence or a barrier to examination of complaints about injudicious act of the judges. Criticism of the judiciary is not a dangerous evil feared by those who would protect the courts. The benefits of freedom of expression are as strong in this context as in others. The criticism of the judges will not damage the rule of law and independence of the judiciary. It may, by identifying defects in the judicial system, promote the cause of justice. Emerging public awareness and strong demand to see all public institutions including the judiciary to be more accountable and transparent in all matters, all the judges of Nepal and particularly judicial leadership must be prudent in dealing with these allegations very seriously and responsibly.

The loud voice raised against the misconduct of the judges induced former CJ Anup Raj Sharma to set up a high level Judges Panel to study in depth the real facts, condition and circumstances responsible for the existing malpractices eroding the image of the judiciary. The Panel submitted its comprehensive report a month back with many pragmatic recommendations. Justice Shrestha while presenting the report remarked, ‘If the Chief Justice, Chief Judges of Court of Appeal and District Courts take initiatives, corruption and irregularities can be brought down by 60 percent’. Though corruption within the justice system is multi-faceted and multi-layered, committed leadership can only effectively combat it. Is it possible that leaders of these courts can properly tackle these issues? How can these judicial leaders have common approach and plan to fight these evils? What measures are necessary in order to get full cooperation from subordinate judges, court staffs and other stakeholders including the Bar Units in this regard?

For effective and successful performance, the Judiciary has come up with the Five Year Strategic Plan since 2004. The second plan has envisaged a few strategies on ethics and code of conduct for judges and court officials. It is not wide-ranging. The Strategic Plan and the Panel report are indeed useful tools and valuable reference for designing extensive action plan for anti-corruption programmes in the judiciary.

If the people believe that the verbal commitment is just for cheap popularity, it causes more harm than benefits. Therefore, incumbent Chief Justice in wider consultation with the judges of the Supreme Court and the members of Judicial Council ought to formulate and implement a concrete plan of action. Since the CJ seems fully committed to curbing malpractices of the courts, he will likely get full cooperation from the justices, members of the Council and other stakeholders. The anti-corruption action plan needs many priorities and it should address matters like change in attitudes of judges and court officials, disclosure and monitoring of assets of judges and their families, professionalism in the judiciary, enforcement of the code of conduct, publication of judicial decisions, vigorous enforcement of judicial decisions, alternative dispute resolution, transparency and accountability of the administrative process, transparency and efficiency of case management systems, coordination with Bar Associations, Law Faculties, Civil Society, Media and the private sector.

Indian jurist Nani Palkhiwala once observed, “ If you lose faith in politicians, you can change them, if you lose faith in the judges you still have to live with them”. It is a universal phenomenon that even incapable and incompetent judges continue to sit in the Bench due to the rigid process of removal. But, corrupt judges are never tolerated even by their own fraternity because of a clear understanding that erosion of public trust is an irreparable loss for the judiciary. The task before the Chief Justice and the Judicial Council in curbing corruption is not easy but rather very challenging , nevertheless, not impossible. It is said that where there is a will, there is a way. It largely depends upon the firm will of the judicial leadership as to why, what, when and how to plan programmes that can help eliminate corruption in the judiciary and to build complete public trust in it.

The author is Judge at the Court of Appeal, Janakpur