Justice delivery and judicial independence have often become topics of public discussion and debate, increasingly in recent years. Many judges and lawyers have themselves expressed dissatisfaction over the existing state of affairs. There is often an unhealthy tendency to lay the blame at another’s door ,for instance, those in the judiciary raising a finger of accusation at those in the executive, and vice versa. Even the Bar and the Bench have traded charges and counter-charges. The row between the two, leading to the Supreme Court’s recent prohibition on Nepal Bar Association president Bishwo Kanta Mainali, only to be reversed days later with some loss of face under strong NBA protests and boycotts, has become a cause celebre; so has the current stalemate between the Judicial Council member Motikaji Sthapit, who was appointed by the then prime minister Girija Prasad Koirala, and the Maoist minister for Law, Justice and Constituent Assembly Affairs Dev Gurung.
However, it would be unfair to blame any single institution for all the serious shortcomings of the Nepali judiciary. All those who are in a position to make a difference to the judiciary should share the blame, though in varying degrees. To start with, the government needs to provide the judiciary with adequate infrastructure and manpower and budget, of course within the proper limits of the national budget, so that the judiciary may be able to discharge its responsibilities better. Weaknesses have existed in this area for years. Chief Justice Kedar Prasad Giri on Monday admitted that the judiciary is facing an acute shortage of manpower. This problem is real because the vacancies have not been filled in time — at present more than four-dozen posts of judges and officers remain vacant. But it is also a moot point whether the CJ took the initiative required — judges have retired or are at risk of retiring soon despite their overdue promotions, just because of the delay in decision-making.
This delay will militate against justice delivery, as well as being unjust to the affected judges. The face-off between Gurung and Sthapit is delaying the judicial appointments further, contributing to the piling up of additional cases in a judiciary that already sits over a mountain of undecided cases. NBA and others have suggested dialogue as the best means of ending the stalemate, and the CJ has also promised to take the initiative towards that end. The development of the situation in which the law minister demands the resignation of a PM-appointed Judicial Council member and the latter refuses to step down is in itself unfortunate. Particularly in the field of the judiciary, it should not matter who makes appointments or who comes to power later on. But in Nepal, unhealthy practices have developed, in which successive holders of top executive office, top judges and judicial officials have hardly been above reproach. Added to this is the fairly strong tendency among many appointees of an outgoing government to try to set up obstacles to an incoming government out of the opposition’s mindset. Certain areas, in particular the judiciary, should be kept above such controversy, and to this task all concerned should contribute.