Monday, November 29, 2021

Next Door Nepal: Judges in the dock

Another state institution slips as lawyers quit over judicial appointments.

Written by Yubaraj Ghimire |
February 13, 2017 12:04:21 am
judicial appointment, nepal judicial appointment, nepal bar association,NBA lawyer quit, judiciary, judges appointment, pending cases, Sher Bahadur K.C., indian express news, india news, indian express opinion The lawyers who resigned from the NBA include its vice-president and those from the proposed Province No 2, a part of Madhes region.

At least 338 practicing lawyers including senior office bearers of the Nepal Bar Association (NBA) have resigned en masse. Their extreme step, a first in the 60-year-old history of the independent justice system in Nepal, is in protest against the appointment of 80 high court judges by the Judicial Council headed by Chief Justice Sushila Karki overruling protest by two of the five members over a month ago.

NBA Chairman Sher Bahadur K.C. “collected” the mass resignations. He has since announced a panel to probe the conduct of Ram Prasad Situala, the NBA representative in the Judicial Council. Situala has been accused of boycotting the council meeting as part of a “design” to help the CJ and ruling Maoists have their way in the appointment of judges. Though only the NBA representative is in the ambit of the investigation, the move has wider implications. Karki, the first woman head of judiciary in the country, has come under a cloud of suspicion and her moral authority has taken a beating. So far, she has maintained silence on the issue.

The lawyers who resigned from the NBA include its vice-president and those from the proposed Province No 2, a part of Madhes region. They feel the region was not given any representation “in violation of the mandatory inclusiveness” promised in the constitution. They raised anti-CJ slogans before handing over their resignations Thursday. No business has taken place in the courts in the area for about a month — ever since the CJ cleared the appointments of the 80 judges.

It is not just an ailing and discredited judiciary that Nepal should worry about. Politics without any accountability and the prevailing anarchy ought to depress all those who believe in democracy.

That Nepal is in a total mess, anarchy has been let loose, state institutions are getting weaker and political instability will continue to dog the country for the foreseeable future are commonly held views. But not many people thought that judiciary too will slide and become an extension of the executive and the political parties in power.

The debate is no more about the failure of yet another state institution, but its likely impact on constitutionalism and the constitutional order.
What is the fate of a country where judiciary, by its conduct and composition, shows a willingness to be seen as an extension of the political executive? What is left of its claims of being an “independent judiciary”, if it has lost trust and credibility in the eyes of public? Can democracy be safe without an effective, efficient and fair justice system?

Some constitutional experts and opinion makers have even started suggesting that judicial reforms are impossible as “the whole political system has decayed, degenerated and become chaotic”. “Driving out the ‘politically appointed’ judges en masse is not possible, but if the CJ or any senior judge or judges quit on moral grounds that may not only pave the way for re-injecting faith and credibility in the judiciary, but also inspire parliament and politicians to review and rectify the political mess and disorder they institutionalised in the country in a decade of sweeping and poorly managed radical change,” says a former attorney general.

That is also a guarded way of saying that the incomplete constitution delivered on September 2015 should be declared “dead”. The three big parties — the Maoists and the Nepali Congress that form the ruling coalition as well as the main opposition, the Communist Party of Nepal-Unified Marxist Leninist — continue to claim that it is the “best constitution” in the world, but all of them doubt if it can be implemented in its current form. Devendra Lal Nepali, a senior advocate and constitutional expert, says, “It is time that the doctrine of eclipse be invoked so that the 1991 constitution, unconstitutionally dismissed after the 2006 political change, is automatically resurrected.”

Almost all the key actors of the 2006 political change agree that the three “major” achievements — federalism, secularism and republicanism — will be lost if elections to the federal parliament, yet-to-be-delimited provincial legislature and local bodies are not held in the next 11 months. They also doubt if these elections can be held within the stipulated time frame. The current constitution minus federalism, secularism and republicanism is similar to the 1991 constitution.

Nepal is not new to political instability. But the fragmentation of politics and political parties, and the collapse of state institutions, have brought “unanticipated anarchy”. Politics without accountability and a compromised judiciary offer an invitation for “dictatorship”.

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