Can you elaborate on your speech at the conference that dwelt on the role of judiciary in democracy at a time when the Constituent Assembly is busy drafting a new constitution?

I’ve come to take part in a discussion on the role of judiciary in democratic countries.

You might be familiar with the recent report of the Constituent Assembly Committee on Judiciary, which has been causing a furore in Nepal. Our jurists maintained that it would curb the independence of judiciary. Do you agree with this view?

I believe in a strong and independent judiciary. In a democracy, it is important that the judiciary is free from external or internal pressures, and is able to take decisions freely. As far as democracy is concerned, certain freedoms are associated with it. Rule of law and independence of judiciary are strongly associated with democracy.

There are two schools of thought. One is for the supremacy of judiciary, while the other is for a powerful parliament. What is your take?

The constitution is the supreme law in any country. Every organ in a democracy must be bound by the constitution.

There are some nations like the United Kingdom, where parliament is all powerful. Can that model be followed?

Parliament is supreme since laws are passed by the House. But that does not mean laws passed by parliament cannot be challenged in court. You must have seen how the judiciary functions in the United Kingdom. It doesn’t touch the laws passed by parliament. The judiciary has determined all the rights for the citizens. That’s why the judiciary in UK is also independent. Though there have been recent changes, parliament still remains the supreme body. For instance, Human Rights Act, 1993, has a provision to examine it. Consequently, the court may not strike it down but at the same time it can make observation that it is incompatible. Later, the law can come up in parliament for amendment or do away with it. This is the latest procedure, which is a minor deviation from the earlier practice. Also, the UK court is empowered to give its ruling whether laws are compatible with human rights.

In many democratic countries like Switzerland, the law cannot be reviewed by the Supreme Court. The laws amended are as per the will of the people. Hence, judicial review of a law isn’t always necessary. What’s your opinion about this?

Parliamentary supremacy is in vogue in certain countries. Simultaneously, judicial independence is extended to take a call on human rights cases. However, this process is creeping into the system ever so slowly. Going by the recent trend, the supremacy of parliament is gradually getting diluted. A vibrant democracy has to ensure that the Supreme Court has the power to rule whether a law is inconsistent with the constitution. If parliament enacts law curbing the fundamental rights, then the court ought to be the right forum to challenge the issue.

Our Constituent Assembly committee on judiciary has empowered parliament to be the final authority to interpret the constitution. What’s your perception about it?

It depends on what system a nation has adopted. If parliament is supreme, then the court cannot question the law. As per the system, whatever powers the court has been granted; it ought to exercise those in absolute terms.

Are you in favour of quota system in judiciary?

There shouldn’t be any strict quota system or any such provisions in the judiciary.

What’s your suggestion to our Constituent Assembly?

I’ve come to Nepal as a guest. I cannot give any suggestion.

If the separation of power and checks and balances cannot function smoothly, then what kind of problems will a nation face?

This brings us back to the basic - as in what kind of system is adopted by the constitution. For example, in India, separation of power depends on the central government. So does, the residuary powers. Hence, we cannot talk in absolute terms like the United States.

Though India is a large country, it still retains a unitary judicial structure. Can a small country like Nepal afford a federal judiciary?

It will depend on the nature of federal structure. If Nepal opts for cooperative federalism, then it wouldn’t be an expensive affair.