Dr Kundan Aryal

The judiciary is regarded as the nation's moral conscience in democracy. People anticipate that an independent judiciary should tell truth the people about the political power instead of being influenced by it. The political history of Nepal shows centralisation of power, first in the hands of Rana rulers, and then the Shah kings. The political changes of 1990 led to the substantial reform in the judicial system. The Constitution of the Kingdom of Nepal, 1990, for the first time, guaranteed the independence of the judiciary. However, in practice, its independence has always come into scrutiny.

Judicial independence
The judiciary has been making its efforts to create a sound atmosphere for judicial independence. Albeit there are some significant examples of the Supreme Court asserting its independence, it is yet to be fully realised and developed as its norm. Moreover, the judiciary is well aware of a perception of widespread corruption in its surroundings. The Supreme Court must have knowledge of the position of Nepal Bar Association (NBA) that has been quick to pass comments on the former’s decisions and conduct of the judges. Just five days ago, the NBA, with the copies of as many as six earlier memorandums, submitted a 17-point memorandum to the Chief Justice. The elected body of registered lawyers has demanded that a special commission be formed to identify the factors that hamper the fair and easy access to justice and recommend the plans for its improvement.
The issue of the appointment of judges and their performance is often debated in the public. The Bar has echoed the public opinion that the consequences of undermining optimum eligibilities, attitudes and behaviours, commitments, experiences, abilities, moral as well as honesty would inevitably affect the justice delivery system. Thus, the Bar has come up with the suggestions to provide the judges with adequate learning opportunities to enhance the level of public trust in them and their efficiency.
The Bar has raised the enduring issue of the case management system, specifically the matter of fairness in publishing the list of the show cause notices of the court. The existing modus operandi of preparing the show cause notice list is being considered as a major hurdle to enhanced public trust upon judiciary in Nepal. The Bar insists that the courts ought to start automation system in preparing the cause list to win the trust of people and media. It has concluded that the current way of arranging the lists of cases for hearing by the Chief Justice and Chief Judges of other courts is defective. Thus, it demands to adopt fully automated system within a month in determining the cause lists in the entire level of courts.
The law professionals have expressed their serious concern over the inadequate scientific basis on the process of preparing the list of cases at all levels of courts. It is accused that the order of hearing of the case, bench and the judge as well as the date of hearing has been fixed in the interest of intermediary agents. Several anecdotal accounts on the engagement of middlemen, who are hired for their bridging capabilities, have come to surface over the years.
It was a matter of conversation in the surroundings of the courts that if there is an intermediary along with planning the case, even if is a new one as per the registration, it certainly gets included in the case list. If there is no intermediary, the case would be delayed. The prominent law professionals of the country have explicitly indicated this anomaly, terming a major policy corruption.
According to the judiciary regulations, it is the responsibility of the Chief Justice at Supreme Court or the Chief Judge at other courts to prepare the order of hearing of the cases and assign the judges to hear them. However, most of the Chief Justices or the Chief Judges are being criticised over this issues. The allegation is that the intermediaries, who neither officially represent the judiciary nor the justice seeker victims, channelise the cases to the favourable benches and desired judges. The intermediaries outside judiciary are known for their influence over the justice process.
Noted lawyer Tikaram Bhattarai have publically quoted another senior advocate and former Chair of Nepal Bar Shambhu Thapa's remarks that the order of hearing of the case, judge and the date is being placed on sale. Thus, by introducing automation as suggested by NBA, instead of the existing questionable system of making the case list, the judiciary would enhance its faith, first among the law practitioners and then among the general public.

Positive image
NBA has called for boosting people's faith in the judiciary. It reiterates that the role of the judiciary is crucial to promote and protect people's rights in comparison to the other two organs of the State. Thus, the common professional organisation of the Nepali lawyers asserts that independence, as well as ability, impartiality, transparency, and fairness need to be regarded as the key elements to enhance the public trust in the justice system. Since the judiciary recognises the role of the Bar pertinent in judicial reform, its recent concern over the justice system would help the court in pushing reform.
Reflecting opinion and perception, the Bar reiterates that access to justice and enhancement of public trust is a must for the judiciary. However, the judiciary will not burnish its image without being functional in providing justice to the rich and poor equally. It is beyond doubt that people’s faith in judiciary will be increased if the services of the judiciary are full of reasons and accessible to all.

(Dr. Aryal is associated with the Central Department of Journalism and Mass Communication of Tribhuvan University.)