True federalisation of the judiciary is only possible through the participation of the provincial-level government in the judicial council. All provinces should, therefore, establish a judicial advisory council. Otherwise, it can be concluded that the judiciary in Nepal is not compatible with the universally-accepted federal principles and structure
The judiciary plays a significant role in interpreting constitutional complexity, applying the law and adjudicating controversies between people and the state. It safeguards the constitution by keeping all state authorities within the constitutional framework.
It is important to evaluate the independence of the judiciary in any democratic setup as it must be independent despite maintaining the checks and balances between the three organs of the state, and the absence of a fully autonomous judiciary may lead the state to lose control over the law and order situation.
The role of the judiciary in a federal context is crucial, and various types of judicial practices exist around the world. Power-sharing arrangements between different layers of the state raise the need for clarity on which level of government should exercise power in diverse cases.
Hence, a federal setup necessitates the requirement for a final arbitrator in settling disputes. In the federal context, where the judiciary has attributes such as legitimacy, impartiality and procedural guarantee, the judiciary is the appropriate choice for this task.
Federalism helps evolve a positive response towards democracy, progress and development, including the combination of unity in diversity, pluralistic democracy and cooperation within and among nations.
Authorities in federalism are territorially divided into a minimum of two levels with full autonomy and independent jurisdiction.
This ensures that the duties of the government, parliament and the courts are effectively discharged.
Jurisdictions of different levels of court have been debated in every federal structure. Those in favour of independent autonomous states with the right to self-determination at different levels of the federal structure argue that centrally controlled government systems lack transparency and accountability.
If there is real commitment to the management of federalism, the three main organs of the state must be made directly accountable to the people.
Generally speaking, the judiciary is an interpreter and protector of rule and law. However, the nature and degree of autonomy may vary in different contexts.
In Canada, the Supreme Court is at the apex and plays the role of the General Court of Appeal.
There are three tiers of federal courts and tax courts under the Supreme Court, and all tiers are independent in their jurisdiction.
The federal government appoints the judges, and the advisory committee helps ease the judicial process at the province level.
The Supreme Court exercises power to resolve disputes in all areas of law.
Likewise, the Indian judiciary is considered highly independent and very influential being the guardian of democracy to strengthen the rule of law.
While providing administrative support to the subordinate courts, all courts are free to carry out the delivery of justice. Supreme Court practices go beyond the federal character, but the appointment of judges at the High Courts is finalised with the conclusion of the Governors.
The Ethiopian courts are literally controlled by the parliament and function under heavy political pressure.
Based on interactions by this author with the general people and authorities in some regions, people were dissatisfied with the federal practices.
As observed in the majority of federal systems around the world, there are clear provisions considering representation from the non-federal governments.
Completely independent constitutional courts have been established to settle constitutional disputes.
Nepal has centrally-controlled three tiers of courts.
All courts are completely independent in principle, yet people doubt that they are. It is evident that all judges at the Supreme Court are not appointed on the basis of merit, qualification and occupational integrity. Most of these appointments are based on political inclination and personal influence.
Furthermore, some provisions in Nepal have led the judiciary to be heavily influenced by the Parliament.
Examples include the practice of appointing judges from fewer related disciplines and the practice of sending judges to conduct research and investigation for certain time periods to make way for more favourable candidates.
Poor rule of law coupled with political instability and weakness in the state machinery has encouraged widespread impunity.
In federalism, all levels of government must discuss, co-operate and share information to settle problems of varying nature. The role of interpreting federal laws and the constitution in a changing context is the jurisdiction of the courts.
Thus, transparency and accountability must be made the underlying feature of the judiciary to prevent democracy from becoming reduced to a mere bureaucratic process. Accountability can be ensured by removing and punishing judges based on the degree of the crime if found inept in discharging their duties. Nepal has to either accept a judicial system based on full-fledged democracy as per international standards or impose an autocratic judiciary to fix judicial structures.
The examination of the structure of Nepal's judiciary in the federal context reveals a unitary structure.
The Nepali constitution does not consider representation from the provincial governments in the judicial council. Constitutional provisions regarding the judiciary go beyond universally agreed principles on federalism.
Thus, the constitutional provisions, when compared in line with federalism, are not only contradictory but also regressive. The concept, values, and norms of a federated judiciary are completely ignored.
True federalisation of its judiciary is only possible through the participation of the provincial-level government in the judicial council. All provinces should, therefore, establish a judicial advisory council.
Otherwise, it can be concluded that the judiciary in Nepal is not compatible with the universally-accepted federal principles and structure.
A version of this article appears in the print on June 28 2021, of The Himalayan Times.
