Justice in the dock
The Nepali judiciary has triggered public controversy from time to time through its decisions, or sometimes also because of its failure to decide on pressing national issues, for example, the House dissolution case, and sometimes even for praiseworthy reasons, such as that which scrapped the royal commission on corruption control. It is now in the news again for similar reasons. In a rare act, the Judicial Council has decided not to extend the two-year term of SC ad hoc judge Paramananda Jha, leaving him with a choice — either to resign or to return as the chief judge to an appellate court — which is considered a virtual demotion. Jha is paying the price for “improperly” overturning the verdicts of district and Patan appellate courts, thus releasing a drug-peddler. Likewise, the Public Accounts Committee (PAC) is taking lawyers’ opinions on the default case of a bank loan taken by a sugar factory in which two apex court judges decided in the factory’s favour, drawing wide criticism. PAC chairman Chitra Bahadur KC and some other MPs say once PAC is supplied with valid grounds in writing, it could proceed to impeach those judges, who had allegedly ignored norms, precedents or ethics in arriving at the verdict.
In the past, even where there were reasons to believe that some judges had not acted on purely professional considerations, the parliament impeached none. This is believed to have emboldened a number of judges to go, at times, beyond the call of duty. This, along with the politicians’ inability to appoint impartial, courageous and democratically-minded judges on most occasions, may well have been reflected in the judiciary’s failure to prevent the derailment of the Constitution, as well as in the fact that most high-ranking judges went along with the unconstitutional February 1 (2004) royal takeover. Independence of the judiciary is a vital feature of any democracy. But in a democracy worth the name, there are also saf-eguards by which a judge who demonstrates incompetence, unbecoming behaviour or does not discha-rge the duties of his office in good faith is removed.
The problem in Nepal has been the failure to invoke these constitutional provisions. It may therefore be appropriate to examine whether there exist in-built difficulties in taking action against wayward judges. This should be taken care of while finalising the interim constitution. As for the drugs case, if Jha is really guilty, sending him back to the appellate court is, perhaps, not much of a punishment. Can one deemed unfit for the apex court on such grounds be considered fit for the appellate court? While taking note of the PAC’s purported move, one is also called upon to ponder how those judges who were seen to be collaborators with the erstwhile regime ought to be treated. All sectors of public life, ideally, should be perfectly clean. But the judiciary, which is the last resort for seekers of justice, should be all the more so. Otherwise democracy would come with distortions, with the rule of law becoming the first casualty.