In Nepal the courts are yet to develop the doctrine of judicial accountability but this is not entirely surprising. Judicial misconduct has been brought before the courts very rarely in the world.

Nepal’s judiciary had been respected even during the autocratic Panchayat regime. But now he judiciary is passing through hard times. Are we then going towards recession? Events are eing played out in the media as the conduct of some members of the judiciary has become ontroversial. For the first time, the judiciary has come under intense public scrutiny.

The question of judicial accountability is now greater than judicial independence. People’s voice is becoming increasingly vocal over judicial work. The judiciary has the responsibility to react to the situation positively, rationally and cautiously. Though the judiciary is in danger of losing confidentiality, it still has a bright future.

The judiciary is fully aware that it has to be accountable to citizens. Obviously, the judicial decision must be accompanied by reasons to enable litigants to know why a particular decision is reached and to allow for appellate review. This helps to expose arbitrary decisions. Judges should have faced charges of judicial misconduct for their misdeeds.

The conduct of judges cannot be discussed in any legislative assembly. It has an absolute role provided by constitutional supremacy. In the parliament it cannot be discussed in either House except on a substantive motion of not less than one quarter of the members of either House. There is no civil liability or penalties for wrong decisions of bona fide judges. The protection is essential to enable judges to decide fearlessly. Without it the judges would not be able to perform their judicial functions properly and effectively. But the provision does not shield judges from acts done outside the court not in the discharge of their judicial functions.

Some scholars have wondered whether Nepal’s judiciary should have a specific legislation to deal with judicial accountability. In the United States of America, for instance, there are safeguards aimed at, inter alia, depriving judges of immunity for deliberate violation of law, fraud or conspiracy, intentional violation of due process of law, deliberate disregard of judicial acts without jurisdiction, blocking of a lawful conclusion of a case, any deliberate violation of the constitution.

First, we can examine the issue of accountability in administration, including the judiciary. ccountability means responsibility for one’s performance. Administration means mplementing policies and programmes to achieve specific objectives.

In Nepal, we have perhaps the best articulated policies and programmes. When it comes to implementation, we generally find that policies are not implemented at all; if they are implemented, they result in counterproductive outcomes.

Nepal’s political system of governance is in the form of a multi-party democracy. Yet we have a judiciary with absolute power over our courts, which is unparalleled in history. This power is founded on judicial independence, judicial immunity and control over the Bar. Our system of government is based on separation of power and does not allow such concentration of power in the judicial branch.

Accountability takes different forms for people holding office in different organs of the State. Thus, systems of accountability appropriate for those holding positions in the executive and legislature are not appropriate to the judiciary. An additional modern system of accountability will strengthen the confidence of the people in the judiciary. A transparent judiciary with clearly-defined strengths will help it become more independent and accountable. Thus a truly modern judiciary is like the diamond of a democracy.

However, the legal profession has become commercialised, where justice is not the objective but, only the vehicle for keeping the clock running for billable hours to extort maximum profit.

Although judges and lawyers hypothetically take an oath to uphold the laws and the constitution of the land, in many cases that oath might as well have been taken on the cookbook to brew up litigation to use the legal system for an assembly line conversion of the victim’s assets into fees or to confiscate it outright.

Here it is notable that Justice Michael Kirby, judge of the High Court of Australia, has said, “In a pluralist society judges are the essential equalisers. They serve neither majority nor any minority. Their duty is to maintain the law and do justice. They do not bend their knee to the governments, to particular religions, to the military, to money power, to tabloid media or the screaming mob. In upholding law and justice, judges have a vital function in a pluralist society to make sure that diversity is respected and the rights of all protected.”

Kunwar is Mugu district court judge