Not an island
Most people feel the need for reform of the judiciary, as of many other sectors, to make justice delivery efficient, impartial, competent, fearless, and, of course, to put the judges above greed. These are real problems that have been afflicting Nepali courts of justice for years, even after the restoration of multiparty democracy in 1990, when the judiciary became independent. Generally speaking, because the judges could not reform themselves, because the executive and the legislature could not introduce significant judicial reforms, and because the parliament could not impeach even erring Supreme Court judges, things did not improve much for the common people. As a result, the stock of the judiciary did not rise. While the independence of a judiciary is a precondition of any democracy worth the name, independence alone is no guarantee of the quality of justice delivery.
The most famous case in which the country’s top court failed to live up to its constitutional billing was over whether the Prime Minister had the sole prerogative of dissolving the Parliament - despite repeated dissolutions and repeated writ petitions in the Supreme Court, the issue was never resolved once and for all. Moreover, the apex court could not stop a constitutional breakdown all owing to its lack of courage to decide on a review petition once the dissolution upheld by it could not result in the holding of the general election within the constitutional time-limit. Prevalence of corruption in the judiciary has been acknowledged by several chief justices and judges. While all other organs of the state are up for reform, the judiciary cannot remain an island. The provision for re-appointment of judges under set and clear criteria has also been floated as one of the ways of reforming the judiciary once the new constitution is promulgated.
Any reform should however be aimed at imbuing the judges with more and more of the above-mentioned qualities. There has been a tendency among the judges, sections of legal practitioners and politicos to misinterpret any move that may threaten personal interests of some of the judges as an example of political interference in the judiciary. One such example was the constitutional provision of parliamentary hearing of judges before they can be appointed as SC judges. What is of central importance in a democracy is whether the judges have independence of action in discharging their official duty. Constitutional and legal provisions should be tightened further to ensure that only those people who are above public suspicion as to their qualities and character should be appointed, and they should retain their posts as long as they remain above public suspicion. The perks and allowances of judges should be raised if they are inadequate. And the courts’ budget allocations may well deserve to be increased. But on the grounds that the judiciary receives inadequate funds from the government, one cannot justify its going to the NGOs and INGOs to seek funds, just as any claim that judges, bureaucrats, or ministers receive ‘low salary’ cannot absolve them if they take a bribe.