TOPICS: Need to uphold judiciary’s independence
The judiciary is expected to lead the process of establishing the values fixed in our Constitution. It is the judiciary that must preserve and protect the Constitution. It must therefore be able to discharge its duties “without fear, favour or prejudice”. The modern judiciary has to come to terms with the role played by the media in the relationship between judges and public. An independent judiciary assures people that court decisions will be based on the laws and Constitution, not on shifting political power or pressures of a temporary majority.
Independent and professional judges are the foundation of a fair, impartial, and constitutionally guaranteed system of courts of law known as the judiciary. This independence does not imply that judges can make decisions based on personal preferences but are rather free to make lawful decisions even if those decisions contradict the government or powerful parties.
The judiciary is an institution on which rests the noble structure of democracy and the rule of law. It is the judiciary that is entrusted with the task of keeping every organ of the State within the limits of constitutional power. Where there is abuse or misuse or power by the State or its delegates act outside the Constitution or the law, the rule of law is violated. This “state of lawlessness’ has to be curbed and controlled by the judiciary.
Current efforts to encroach on judicial independence come in a variety of forms including the executive, Maoists. It is important for lawyers and judges to announce that judicial independence shall never die in this country.
The Constitution of Nepal 1990 visualised an independent and competent judicial system. Since the restoration of democracy, the judiciary has become more powerful and independent. It is now constitutionally independent and is the sole authority to dispense justice as per Article 84 of the Constitution.
The judiciary in Nepal is the only institution that enjoys exceptional constitutional protection and formidable weaponry such as contempt of court to silence the critics. Unfortunately, a nexus has developed between corrupt members of the judiciary, the government and powerful sections of society, including some from legal profession. It is necessary that the quality of judiciary should be substantially improved. This means that the selection and promotion process for judges should be made more transparent, stringent and based on well-established parameters and in case of doubt an immediate investigation is necessary.
In a democracy, the people hold sovereign power. Democracy subjects governments to the rule of law and ensures that all citizens receive equal protection under the law and the judiciary protects their rights. A well functioning judiciary is essential for development. Neither the fundamental rights nor the application of the laws can be guaranteed without an effective, independent and competent judicial branch. Therefore, the judiciary must be perceived as being honest and clean.