Negotiating judicial design in Nepal’s new Constitution
In a recent spat, Nepal’s Judicial Council blasted Parliament for overstepping its authority by summoning members of the Council to appear before it. Parliament was seeking clarification from the Council on some of its nominees in an ongoing process for Supreme Court appointments that has been mired in controversy. Lawmakers took exception to the recommendations amidst complaints of, amongst others, corruption, impropriety, and financial influence from nominees, with some even arguing that the whole process was a power sharing deal amongst the political parties.
This is not the first time appointment processes to the judiciary have been disputed. Ever since the Judicial Council was tasked under the 1990 Constitution to oversee the process, it has courted controversy, with constant accusations of politically motivated appointments. For instance, in an infamous case two years ago, after being appointed to the Appellate Court, judges immediately went to the headquarters of a major political party to thank party leaders.
Even if on the surface, the tussle this time around seemed rooted in the question of whether Parliament had the authority to summon the Judicial Council before it, the discord reflects a much broader controversy relating to the design of the judiciary in the new constitution. Who has the power to appoint and remove judges? What should be the scope of that power? What should be the criteria for becoming a judge? How should the court structure or other institutions within the judiciary, such as the judicial council itself, be designed? What should be their respective powers? How should the judiciary be designed to ensure that it is both independent and accountable? These are some of the key questions CA members continue to struggle with as they deliberate on the new Constitution.
The appointments of controversial judges have raised questions about the Judicial Council’s probity and accountability itself. The Nepal Bar Association (NBA), following the recent row, urged Parliament to open hearings against all the members of the Council who made the recommendations. Analysts point out that at a time when the performance of the executive and the legislative branches leave much to be desired during the constitution-writing process, the role of an independent judiciary becomes even more important. However, they say, these new appointments raise questions about the integrity and independence of the judiciary.
In addition, CA members are reviewing the Judicial Council’s role as a key actor in the judicial appointment process as well as the design of other judicial institutions, although there seems to be no consensus so far.
Of the Judicial Council and Judicial Appointments
Maoists argue for a system that would appoint judges through a special parliamentary committee that controls and disciplines the whole judiciary. Madhesi and ethnic-based parties share similar views. The Nepali Congress rejects the Maoist position on the argument that it is fundamentally inconsistent with the principle of checks and balances. It favors keeping the Judicial Council as a key actor in the judicial appointment process, but not without reforming it to ensure transparency and accountability in its work. The UML takes, more or less, a similar position, contending that any approach that puts the judiciary or any of its related institutions under parliamentary control is untenable. In lieu, they propose introducing an impeachment provision, which would allow Parliament to impeach the members of the judiciary for misconduct through a supermajority vote of 60 percent. In their scheme of things however, they propose that either the Chief Justice or the Government be entrusted with appointing justices.
For its part, the NBA recommends forming a separate constitutional body to make recommendations for new judges. Under this scheme, the recommending body would be formed through restructuring the present Judicial Council. Non-ex officio members of the Council – a legal expert recommended by the Prime Minister and an advocate recommended by NBA – would be prohibited from undertaking appointments as judges or legal professionals after their tenure. Instead, they would be provided a pension upon retirement, equal to that of a Supreme Court Justice. NBA, it seems, seeks to prevent those recommended members from colluding in controversial, politically-motivated appointments of the Judicial Council. The proposal also prevents those members from influencing the judiciary following their tenure in the Council.
Constitutional or a Supreme Courts and Judicial review
Like federalism, debate over the design of the judiciary has been a vexing subject, predating the current CA. In the former CA, the Judiciary Committee, chaired by the Maoist party, had proposed establishing a Federal Supreme Court with a mandate to interpret the constitution and laws and to regulate the relationship between institutional powers. The Court would be controlled by a Parliamentary Committee with the power to recommend appointment, punishment, and dismissal of Chief Justice. The State Restructuring Committee of the CA later proposed a Constitutional Court, which some analysts saw as a compromise between those who wanted Parliament to be the final arbiter of the constitution and those who wanted a supreme court. However, the CA was dissolved before the proposal for a Constitutional Court could be fully fleshed out and presented. While a high-level subcommittee of the CA decided on the need for such Court, a number of issues were left unsettled, such as the power to appoint judges, qualifications for judges, the relationship between the Chief Justice of Supreme Court and Chief/President of the Constitutional Court, and the exact jurisdiction of the Constitutional Court. The issues, including the idea of Constitutional Court itself, are currently being debated in the Constitutional-Political Dialogue Committee of the incumbent CA, with consensus still proving difficult as parties hold their positions.
The UML, for instance, wants the Federal Supreme Court to have the final authority to interpret the Constitution and all laws. In their scheme, a Constitutional Court would exist but with responsibility only to arbitrate disputes between provinces, disputes between a province and the central government, and those between local and provincial governments. It will have no power of constitutional review, it seems. The NC proposes a Federal Supreme Court as the highest judicial authority, while the NBA proposes a Constitutional Court to resolve disputes between the central and local authorities and other constitutional disputes of a serious nature.
While the Maoist proposal to make the judiciary pro-people by bringing it under the purview of Parliament clearly goes against the convention of the separation of powers, controversies surrounding judicial appointments and the delivery of justice indicate the need for significant changes in the existing judicial system, including vetting procedures for judicial nominees and strong independent judicial review bodies, whether in the form of Supreme or constitutional courts.
Finding a middle-way solution will be a mammoth task, requiring intensive discussions among political parties (lawmakers), the NBA, legal experts, and jurists, and those discussions may only succeed if all parties are ready to compromise. The general public must also be involved in these discussions in order to maintain the legitimacy and accountability of the process and to reduce any potential that the process will be captured by the same political and financial influences that may have played a role in the recent judicial appointment controversy.
Resolving the issue of judicial selection is of crucial importance. If the guardians of the Constitution are not perceived as legitimate, the legitimacy and success of the Constitution itself will be in jeopardy.