Friday, 3 December, 2021

Piecemeal Changes Won’t Reform Judiciary

Piecemeal Changes Won’t Reform Judiciary

Mukti Rijal

Public institutions in Nepal are plagued with the severe crises of legitimacy. The legitimacy crisis manifests in several forms, dimensions and categories. At times, the executive (government) comes under harsher scrutiny and people take to the streets to question, oppose and resist the rationale and relevance of the state policies, actions and measures. For some time now, the national parliament has become dysfunctional that has stalled all its policy making functions due to inter-party bickering and obstructions.

Erosion of trust
It is the worst manifestation of legitimacy deficit which has more or less resulted in the complete erosion of faith and trust of the people in the national legislative institution. Now the expression of legitimacy deficit of the state institution has surfaced in the judiciary, and erupted through the Supreme Court (SC) – the apex judicial institution of Nepal. The impasse characterised by in-house conflict and hostility in the SC indicates the chronic and intractable shortage of legitimacy in the judicial institutions of the country. The crisis came to the fore in the all-out hostile manifestations during these days but it had been boiling underneath the surface for several decades with episodic outbursts time and again.

One senior judge who had retired from the apex court not very long ago has made a commentary on the sad state of affairs in the judiciary remarking that the rot had started almost three decades ago which has become very serious and irreconcilable during the contemporary times. The sharp decline of public confidence in the capacity of judicial institutions to deliver justice has been assessed in several reports of the national and international organisations, too. Reports and statements of the Transparency International and the International Commission of Jurists, among others, published time and again have indicted Nepal’s court system as being subject to pervasive corruption and executive influence, causing overall inefficiency in the justice dispensation.

Not only this, the reports prepared by panels headed by the sitting judges of the SC, including the last one headed by Justice Hari Krishna Karki, have exposed the several malaises anomalous and abusive practices wrecking at the functional and institutional vitals of the judicial institutions in Nepal. The report suggested various measures to reclaim and restore the legitimacy of the court system. But the judicial leadership has been alleged to be reluctant to provide the much-needed attention and priority to implement the suggestions contained in the reports presented from time to time to restore the propriety in the judicial institution.

Needless to repeat, an independent and impartial judiciary is the cornerstone of the rule of law and of a democratic state. It serves to protect human rights and people’s liberties, provides a democratic check on other branches of government, and helps secure an environment conducive to economic growth and social progress. Therefore, when corruption and anomalous practices occur in the judiciary, it undermines the very principles of fairness and due process of law resulting into denial of people's right to justice and development.

Public confidence is fostered when judicial outcomes are just and yielded without undue pressure or influence from outside. Justice actors in Nepal have been blamed for their blatant, unjust and unfair practices. The indictment that the incumbent Chief Justice hobnobbed and bargained with the executive leadership of the government in spoils sharing arrangement for ministerial berths became the flashpoint of the on-going confrontation in the judiciary. The worst expression of legitimacy deficit of judicial leadership peaked recently when all his judicial colleagues and justices shunned him refusing to participate in hearing of the cases till he steps down from his judicial leadership.

Likewise, lawyers and law practitioners have gone on strike for the last weeks demanding the resignation of the incumbent CJ who has been accused of bringing disrepute and dishonor to the judicial institution in the country. In fact, Nepal had opted for federal democratic polity institutionalised through the constitution authored by the Constituent Assembly with a view to ensuring legitimacy and effectiveness of the state institutions. All the state institutions in the democratic polity are subject to democratic legitimacy test and requirements. Scholarly opinions differ as to when are political institutions and the decisions made within them appropriately called legitimate? Some have argued that this question has to be answered primarily on the basis of procedural features that shape these institutions and underlie the decisions made. Others argue that legitimacy depends — exclusively or at least in part—on the substantive values that the institutions achieve and realise.

Max Weber puts forward a very influential account of legitimacy. According to Weber, that the state institutions become legitimate only when people and other institutional participants repose their beliefs or faith in it. The basis of system of authority, and correspondingly of every kind of willingness to obey is a belief and trust by virtue of which persons exercising authority are lent consent, prestige and support.

Consent is, therefore, a necessary condition for the legitimacy of political authority. The test of the consent is grounded on the integrity, utility and performance of the state institutions including executive, legislative and judiciary. Moreover, legitimacy is fostered and strengthened by affirmation of rule of law, respect for human rights and justice, accountability and integrity.

Ethical transformation
The legitimacy deficit stalking the state institutions, especially judiciary in Nepal, has been thus due to, among others, blatant disrespect and non-adherence of moral values and integrity on the part of justice actors in the judicial institutions. Unless the issues surrounding moral and ethical grounds for legitimacy among justice actors in the system of justice delivery are functionally and structurally addressed, the crisis will not be fully tackled. Only patchwork and piecemeal changes will not be adequate. Not only judges but also other justice actors, including lawyers, should also be ready to undergo ethical and legitimate transformation to reform the image and profile of judiciary.

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.