Maoist, non-Maoist parties differ on judicial independence

KATHMANDU: The Nepali Congress, the CPN-UML and other parties

have been saying that globally accepted democratic principles must not be overlooked while drafting the constitution and claim that the UCPN-M wants to establish an autocratic system, ignoring democratic principles. The UCPN-M, according to them, wants the legislature to be all-powerful, above the executive and the judiciary.

The UCPN-M has been accused of caring little about the principle of separation of powers and of advocating a system like the one prevalent in communist countries, including China. The UCPN-M leaders argue that people are supreme and the Maoists want to make state bodies responsible to the people. They claim that the legislature is the people's representative body and even the judiciary should be subservient to it. But non-Maoist lawmakers say the judiciary can show its responsibility to the people by upholding the constitution properly and by remaining uninfluenced by the executive or the legislature. If control was imposed through the legislature, it cannot dispense justice freely and independently, they point out.

In this backdrop, the CA's Committee on Judiciary, is unable to take a concrete decision after the UCPN-M raised serious questions on control mechanism of the judiciary.

The UCPN-M has proposed

to make the judiciary responsible

to the legislature. For that it wants

to appoint judges and take action against them from a mechanism

within legislature and to make the legislature the all-powerful body to interpret the constitution.

The major political parties, in the committee, have agreed to structure the judiciary under three-tier system: a. Federal Supreme Court b. State/Provincial High Court c. Local/District Court. Apart from that, a state/province can provision the courts at area, village or metropolitan level under their own law. They have also proposed to provide equal rights to the State/Provincial High Court similar to Federal Supreme Court. As per the present provision, an Appellate Court can look into the petitions, mainly habeas corpus, mandamus and injunctions. The SC at present looks into five kinds of petitions - habeas corpus, mandamus, certiorari, quo-warrento and prohibition. As per the proposed provision for the new constitution, the State/Provincial High Court will also be given the right to look into the petitions in the above-mentioned five areas. But a party will not be able to appeal to Federal Supreme Court against the decision of State/Provincial High Court. Parties have agreed to make the State/Provincial High Court, the court of record. At present, only the SC is regarded as the court of record.

key differences

Non-Maoist view

• The judges should take oath of

office and secrecy as per

the new constitution after its


• The Chief Justice of the Supreme Court (SC) must be appointed from among the judges of the SC.

• Judges should be appointed

by Judicial Council

• Judges of state or provincial level should be appointed from central mechanism

• The final body of interpreting

constitution and law should be the Federal Supreme Court

• The Judicial Council should be the body to take action and terminate the judges' service.

• The proposed language in the

report of the committee from the Maoists undermines the judiciary. Language and words such as

'people's war' should be corrected or removed.

Maoist view

• There should be the provision of reappointment of judges at the

beginning after the new constitution is promulgated

• An eligible person can be brought in the post of Chief Justice from

outside the supreme court

• They should be appointed by a

special committee of legislature

• They should be appointed at state or provincial-level

• A special committee of the

legislature should be given the rights of interpreting the

constitution and law

• A special committee of the

legislature should probe into the complaints against judges. The

legislature should form a special court to take action or terminate their service

• The present system of judiciary is unable to work for people and is working only for feudal. So it should be made responsible to the people as per the aspiration of 'people's war' and political change