Mukti Rijal

Nepal’s judiciary is now under scrutiny these days. The Supreme Court judgment to commute prison term of a high profile convict serving sentence for premeditated murder of his wife was meted out with severe criticism a few weeks ago. As reported in the media, it was suspected that the judgment to reduce the prison term was interpreted as not being fair and just. It invited wrath and harsh criticism from civil society and legal fraternity. The other day, a news item from Kapilvastu reported the massive resentment expressed from the public and legal fraternity questioning the unwarranted leniency of District Court in awarding judgment in the high profile murder case. The judgment has been questioned and real motive behind awarding the decision has been suspected.
Against this backdrop, Nepal Bar Association made a decision to undertake a study of the controversial court judgments from district to the apex court and make their appraisal from the prism of fairness and judiciousness. This is reportedly intended to help maintain the quality of judicial decisions and help to uphold fairness, equity and justice in the administration of justice. Keeping in view the growing frustration and discontent on the quality of the court decisions from the perspective of justice and fairness the Supreme Court has formed a panel to look into issues and recommend the ways and means for improving the judicial governance and integrity.

Judicial integrity
However, this is not the first time that the issue of judicial integrity has been widely contested and debated in the civic and legal domain of Nepal. Several committees and panels had been formed in the past, too, to suggest measures to reform judicial governance and delivery of justice. It is widely perceived that judicial governance is not all good and fair in the country. In the past, some chief justices had initiated measures to act firmly against corrupt practices too. But others lost zeal to spearhead the process of judicial governance reform. The inconsistent and ad hoc nature of initiatives could not work effectively. This led to further deterioration of the credibility of judicial institutions. As a result, judicial corruption has been perceived to be increasing to bring disrepute to the judicial institutions in the country.
Delay in disposal of cases has been a major cause behind this problem. The large amount of money becomes the need for the disposal of the case without any certainty of success. Court process is too expensive, even it is out of the access of the poor and depressed people. Corrupt practices occur in judiciary due to the peddling of undue influence by actors within the court system. For example, a judge may allow or exclude evidence with the aim of justifying the acquittal of a guilty defendant of high political or social status. Judges or court staff may manipulate evidences to favour one party or another.
Generally, criminal cases can be corrupted before they reach the courts. The evidences that support a criminal indictment can be tempered. A prosecutor can deliberately avoid applying uniform criteria to evidences collected by the investigating agencies. In Nepal, as the prosecution has a monopoly on bringing cases before the courts, an allegedly corrupt prosecutor can effectively block off any avenue for legal redress and remedy.
There is also as studies show a correlation between levels of judicial corruption and levels of economic growth. The expectation that business contracts will be honoured and disputes resolved fairly is vital to investors, and it helps usher in sound business growth. An independent and impartial judiciary has important consequences for trade, investment and financial markets. Where judiciary is independent and competent, investors are attracted to put in their resources for business ventures. Mostly corruption distorts the judicial process to produce an unjust economic outcome and consequences scaring away investors and entrepreneurs. A pliable judiciary provides protection to those in power for dubious or illegal strategies such as embezzlement, nepotism, crony privatisation or political decisions that favour the powerful and hurt the weaker ones.
The key to preventing corruption in judiciary is constitutional and legal mechanisms that shield judges from sudden dismissal or transfer without the benefit of an impartial inquiry. This protection goes much of the way toward ensuring that courts, judges and their judgment are independent of outside influences. But it can be equally problematic, according to the global corruption report, if judges are permitted to shelter behind outdated immunity provisions for their wrong doings. Partly this is also case in Nepal to dilute the issue of judicial accountability. What is required is a careful balance of independence and accountability, and transparency subject to scrutiny.
Judicial independence is founded on several interrelated mechanism and measures. The first is the provision of an objective and transparent process for the appointment of judges to ensure that only the highest quality candidates are selected and that they do not feel indebted to the particular politician or senior judge who appointed them. At the heart of the process is an appointment body acting independently of the executive and the legislative organ of the government.

Merit-based Appointments
In Nepal, judicial council is such a body envisaged in the constitution but it has not succeeded to appoint judges based on fair criterion because it is institutionally bound to work under the influence of the executive. Furthermore, merit-based judicial appointments are important and appointment criteria should be clear and well publicised, allowing candidates, selectors and others to have a clear understanding of where the bar for selection lies.
Moreover, relevant civil society groups, including professional associations like Nepal Bar Association should be consulted on the merits of candidates. Judicial salaries must be commensurate with judges’ position, experience, performance and professional development for the entirety of their tenure. Unless persons of judicial competence, calibre and probity are appointed in the judiciary, fairness and effectiveness in the delivery of justice will be a distant cry in Nepal. The frustration and discontent with judiciary in Nepal are the consequences of both institutional and behavioural constraints which need to be addressed effectively.

(Rijal, PhD, contributes regularly to TRN and writes on contemporary political, economic and governance issues. rijalmukti@gmail.com)