Nepal can nurture an independent judiciary that can dispense justice without fear or favour by upholding the constitutional provisions and shielding the judiciary from political influence
Recently, Prime Minister (PM) Pushpa Kamal Dahal, responding to the questions of a reputed journalist, indicated that he personally preferred that the judicial proceedings on citizenship law violation issue and misuse of Nepali passport by former Home Minister Rabi Lamichhane be quashed. He indirectly confessed his involvement in the decision of the Attorney General not to file a writ petition at the Supreme Court (SC) on these issues. The PM further clarified that the alleged mastermind of the Tikapur massacre, Resham Chaudhary – convicted by three levels of courts – was granted a presidential pardon as the major political parties had given him a clean chit on his heinous crimes.
Moreover, he conveyed that the physical wounds of a Tribhuvan University professor who was beaten black and blue by his students have been healed, and hence, the cabinet had decided to revoke the writ petition filed against the perpetrators at the SC.
These lame arguments of the PM attempting to justify the distressing actions of the government and the council of ministers that have blatantly breached the autonomy of the judiciary have downgraded the integrity of the prime ministerial institution. In fact, such actions from the executive are against the spirit of the Constitution of Nepal that establishes a clear separation of powers, and grants the judiciary the authority to interpret and apply the law without interference.
These are only a few recent examples that depict that the executive is palpably encroaching upon the authority and autonomy of the legislature despite a constitutional guarantee of judicial independence. The political pressures and undue influence are undermining the judiciary's impartiality, eroding public trust and faith in the judicial system.
Due to these setbacks, the judiciary is grappling with a significant backlog of cases, leading to delays in the delivery of justice. Insufficient resources, including a shortage of judges, support staff and infrastructure due to political interference are contributing to the mounting caseload.
The backlog is undermining public confidence and denying justice to those awaiting resolution of their disputes.The judges of different levels of courts, including the SC, are appointed mainly on political favouritism and nepotism. Last year, the daughter of one of the ex-chief justices (CJ), who had concealed her ineligibility when she applied for the job, was appointed ad-hoc to the high court judgeship, which was rightly dismissed by the Judicial Council. However, it is anopen secret that there are still a large number of incapable judges and active cadres of the political parties in the judiciary, including the SC. The controversies associated with ex-CJ Cholendra SJB Rana are enough to strengthen this fact.
In 2021, a SC panel headed by senior SC Judge Hari Krishna Karki – the current CJ – had reported that the Judicial Council picks and recommends the names of justices and judges as itpleases without basing it on any legally defined criteria.
In addition, the panel stated that brokers were perpetuating the corruption by handling and influencing internal matters, such as transfers of justices as the intermediaries were found to be working to establish regular communications between justices and parties fighting for or against a particular case. The reportconcluded that the judiciary is grappling with severe political interference and precarious corruption that has limited the access to justice, particularly for marginalized communities and those residing in remote areas.
In addition, limited legal literacy, coupled with geographical barriers and socio-economic disparities are hindering equal access to the judiciary. The fact that more than 130,000 cases are awaiting verdicts atdifferent levels of courts substantiates the findings of the panel.
At the moment, Nepal's judiciary is affected by the worst political influence since the establishment of the SC in 1956. Hence, it is essential to safeguard the independence of the judiciary to ensure its effectiveness and impartiality. Although CJ Karki does not have enough time to implement the suggestions of the panel to the fullest, he can initiate implementing the transformation measures so that his successors could continue forward.
Nepal can nurture an independent judiciary that can dispense justice without fear or favour by upholding the constitutional provisions and shielding the judiciary from political influence. In addition, technological advancements and digitization efforts in the judiciary can streamline court procedures, enhance case management and reduce the backlog of cases.
The capacity of the judiciary should be strengthened through training programmes, continuous education and professional development opportunities.
Investing in human resources and infrastructure will strengthen the judiciary's ability to handle the caseload effectively and efficiently.
Moreover, promoting legal literacy and raising public awareness about the judiciary's role and functions will strengthen people's trust and understanding in the judiciary.
This can be achieved by engaging people in the decision-making processes, such as public consultations on judicial reforms.
The obstacles faced by the judiciary in Nepal pose significant challenges to the delivery of justice and the functioning of the legal system. Overcoming political interference, addressing the backlog of cases, improving access to justice, combating corruption and enhancing resources and capacity are essential for a robust and efficient judiciary.
By implementing reforms, investing in infrastructure and human resources, promoting legal awareness, and fostering transparency and accountability, Nepal can pave the way for a judiciary that upholds the rule of law, protects citizens' rights, and restores public trust in the justice system.
Dr. Joshi is a senior scientist and independent opinion maker based in Germany pushpa.joshi@gmail.com
A version of this article appears in the print on July 17, 2023, of The Himalayan Times.