Liladhar Upadhyaya

Nepal’s judiciary bears its own character of independence. It had become able to save its own dignity even during the Panchayat autocratic system. It played the role to save liberty as a guardian of civilians during the time of autocracy. There is a famous saying that judiciary is the protector of civilians at a time when executive tries to snatch away the freedom from the people.

In this sense, executive is a necessary evil while judiciary is an important organ to check the undemocratic move of it. Democracy sustains under effective system of practicing the theory of check and balance and it cannot be imagined without establishment of independent judiciary. Article 126 of the Constitution of Nepal, 2015 has entrusted the courts to exercise powers relating to justice.
However, Nepal’s judiciary has witnessed several ups and downs during recent couple of years. The more we try to shrink the judiciary’s independence the more we curtail our own liberty. It should remain independent in terms of politics, finance and in its functions. Making judiciary a power centre is meant to invite conflict as well as to damage its dignity and integrity. It matters more in the countries like Nepal where democratic systems and institutions are yet to be institutionalised.

More important thing is that the activities of judiciary should not invite conflict and agitation. Its functioning should be free from biases. It will be difficult to save judiciary when stakeholders smell biases or unfair activities from within judiciary. Judiciary and associated actors are more responsible to keep judicial independence intact. The activities of justices and law implementing agencies should respect the rules of justice and impartiality.

Recent move of parliamentarians to file an impeachment motion against Chief Justice Cholendra Shumsher JB Rana has become a matter of concern for all sectors. Nepal Bar Association organised a protest demanding resignation of CJ Rana. Filing impeachment motion against a sitting CJ itself is an unfortunate event in the history of judiciary. As dignity of the judiciary depends on the faith of people towards the institution, such faith should be generated by the judiciary itself through its works of effective justice delivery. The issue became grave when the NBA, the umbrella organisation of lawyers, raised questions against CJ Rana about his conduct.

There some points to be considered regarding the independence of judiciary. First, there should be a fair appointment system of judges. Among various factors, our appointment system is affected by politics. The political parties should be aware of the norms and values of the independence of judiciary in this regard. Existing appointment system should be reformed to address the concerns of the stakeholders.

Second, the actors and stakeholders within the judiciary should prove their competency and integrity in terms of justice delivery from the time of the filing of a case to the issuance of verdict. Time consuming process, negligence towards the grievances of service seekers and costly process are some to name a few to affect the credibility of judiciary. It is the duty of the stakeholders within the judiciary to remove anomalies that are seen on the court premises.

Third, the stakeholders including the NBA leadership should be aware of the language of criticism against the leadership of the judiciary. For instance, the slogans chanted during the protest were not so decent and suitable for a democratic system. The harsh words against judiciary and leadership shall spread negative message among the people and shall hamper public faith towards judiciary. As judiciary is a sensitive organ, it demands decent language, either it is during the time of protest or during the time of other proceedings.

Fourth, the stakeholders should rectify their lapses, and occurrence of mistakes. Competent human resource is the need of time to keep judicial independence intact.
Fifth, there is a need of improvement in the legal education. Our legal education is mixture of home grown system and foreign influences. Big theories are taught in the academic institutions, but such theories are not materialised in the real sense.

Sixth, there should be simple language in day to day use of the court. A commoner should at least understand the language of the court. There is a practice of passing verdict in long sentences, sometimes there is a half page paragraph of a sentence. People’s faith towards judiciary shall foster if we are able to improve comprehensive side of legal language.
Seventh, there should be effective mechanism to execute court verdict. A verdict of the court shall remain meaningless when a convicted culprit roams in the society freely. A verdict remains meaningless when imposed fines and punishments are not implemented strictly.

Eight, there should be a separate system to check corruption and malpractices taking place within the judiciary or in the name of judiciary.
Finally, effort of single institution or single person does not work in the modern complex society where multiple factors affect the functions and duties of an institution as well as an individual. Sincere cooperation among all stakeholders can easily uplift the dignity of the judiciary.

The role played by the judiciary in Nepal is laudable. It has played significant role in implementing the constitution, either by restoring untimely dissolved parliament or by directing the government to execute several provisions of the laws and constitution. Maintaining judicial sanctity calls for a collective effort of all people because it is a savior of liberty of civilians in times of crisis. Independence of judiciary is a precondition for the advancement of democracy for which our forefathers struggled hard and sacrificed a lot. Democracy Day definitely invites commitment towards independence of judiciary. Saving judicial independence helps save democracy and freedom.

(Upadhyaya is an Associate Editor of TRN. lilajee30@gmail.com)