Questions have been raised about the jurisdiction of the Royal Commission on the Control of Corruption. The commission’s initiation of action against Pyuthan district court judge Birendra Kumar Karna has made the legal community particularly serious about its implications. Karna was arrested “redhanded taking a bribe of Rs. 20,000” in his office by the commission the other day. Some Supreme Court justices are reported to have told Chief Justice Hari Prasad Sharma that this action by the executive against a judge would compromise the independence of the judiciary. Sizable sections of the legal community, mainly the Nepal Bar Association, had held the view that the formation of the commission ran counter to the letter and spirit of the Constitution. Article 93 of the Constitution provides for a Judicial Council to make recommendations and give advice concerning the appointment, transfer, and dismissal of judges, as well as disciplinary action against them.

Some legal experts have criticised Chief Justice Sharma for what they call his “indirect support” for the commission’s action against judge Karna. The 1990 Constitution has clearly defined the functions and limits of the executive, the legislature and the judiciary on the democratic principles of the separation of powers and checks and balances among the three organs of the state. Unfortunately, since the Lower House was dissolved three years ago, the executive has played the role of the legislature too, discharging the latter’s functions mainly through ordinances. The commission’s foray into the province of the judiciary raises legitimate doubts and worries. While there has been public confusion about the legal status of the commission, its action against a judge, the jurisdiction of the Judicial Council, has given rise to fears that if this precedent is established the executive may start undermining the judiciary.

The office-bearers of the commission should rethink their action as it goes against the commitment made by the King to this Constitution in his February 1 proclamation and afterward. They should avoid anything that may create a wrong public impression of the King. From a lower court judge there is only one step to a Supreme Court justice. If the existing five-member Judicial Council, chaired by none other than the Chief Justice, can be ignored, it would not be surprising if any apex court justice faced similar action in the absence of the House of Representatives. No doubt, corruption has affected the judiciary too. But everybody should act according to law and accepted norms, otherwise the state of the country’s democracy would go from bad to worse. The established institutions and mechanisms should be improved if they have proved ineffective.