The institutionalisation of rule of law is an essential task for the country in the process of transition as it establishes a constitutional culture and a break with the past regime of transgressing legal bounds. It can only be achieved with a high degree of judicial independence. The importance of judicial independence is even more pronounced in the post-conflict scenario where a neutral third party arbitration is necessary for mediating the residual issues of the conflict. It establishes what in legal lingo refers as â€œparty detachmentâ€ and avoidance of a â€œtwo against oneâ€ scenario. It instills in both the ex-rebel forces and the institutionalised state party, a greater confidence to proceed with the peace process. With the objective interpretation of law â€” without the social or political compulsion â€” the judiciary provides a logical continuum of the peace process.
The independence of judiciary is especially tested when the government is one of the disputant parties. The judges canâ€™t be absolutely seen as favouring the government position as it is - however with the objective jurisprudence that may provide ground for judges ruling in favour of the government position. Also the domain of judiciary needs to be delineated in clear terms that avoids even the tangential influence by the government or socio-political climate of opinions. Judges personally should be free of any compulsions that arise out of the boundary of judicial prerogatives - and there must be absolute insularity of the judges from threats, manipulation or pecuniary enticements. The literatures on Judicial Independence give great emphasis on the insularity of the judiciary for making it a truly a â€œneutral thirdâ€ â€” the premise of judiciary. It calls for a structural construction of judiciary in such a way that it optimises the chances of insularity. Some of the safeguards suggested for such construction are: life tenure; impartial, fair and transparent selection process; and, significant remuneration that allows for a dignified living standard.
While all these safeguards may provide the appearance of a fair justice system outwardly, the position of the judiciary within the greater realm of polity may still hinder in the objective realisation of an independent judiciary. Many countries under the rule of authoritarian regimes give such an impression of judiciary independent from the outset â€” however inwardly bound by the normative expansionism of the state and its influences. To some degree Nepali judiciary also suffered such digression in its independence during the Kingâ€™s direct rule from 2002 to 2006. However, it still resisted some of the overarching posture of the government, like annulling the establishment of a special Royal court. The position of the judiciary ought to be detached and discreet from rest of the structure of governance.
However, it is to be noted that the degree of judiciaryâ€™s insularity is dependent on the prevailing convergence of interests among the political forces as both the judiciary and the judges do not operate in vacuum. Some democratic ideals, like the majority rule and popular sovereignty, sometimes affect the judgesâ€™ objective faculty to decide on a case. Still, in complex emergencies like the civil war or a great strife, the judiciaryâ€™s scope of authority may loose its objectivity. Presently the sensitive case of retirement of the Army officers is up in the Supreme Court to be decided. While the case remains sub-judiced, due to its high significance to the peace process, the Supreme Court is facing the strain of political nature. Unfortunately, the main party in government has organised protest rallies against the Supreme Courtâ€™s stay order on the retirement, potentially destabilising the courtâ€™s full confidence on its objectivity.
As the courtâ€™s independence is generally contextual - this case is yet another parameter to gauge the transitional jurisprudence in Nepal. The case is also unique in the sense that it is set to test the exceptionalism of both the judiciary and the Army in a democracy. There is always an inherent tension between a polity that insist on horizontal organisation of society â€” the democracy; and an institution that is built on a solid vertical discipline of hierarchy â€” the Army. Hence the Supreme Court ought to decide on the merit of the case keeping in mind the factual circumstance unique to this particular case. This case has a defining say in the way the peace process moves forward in Nepal.
When the issue of army reintegration or rehabilitation is yet to be settled, this issue has brought forth the big mistrust between the Army and the government. While the case would be decided in the most prudent judgment by the Supreme Court; it is also contingent upon the factoring in the issue of delicate peace process and the precedence this case establishes, where the prerogative of the government over the exceptionalism of a subordinate organisation is tested. As such this case has become a defining moment in the peace process with ramification for the future course of the country.