Mukti Rijal

The panel headed by Justice Hari Krishna Karki formed with a view to recommend measures in reforming judiciary has presented its report to chief Justice Cholendra Shumsher Rana during the previous week. Chief Justice Rana has committed to making the report public and taking necessary steps to implement the suggestions contained in the report. Though the report prepared by the committee headed by Justice Karki is revealing and candid, it is not for the first time that such disclosures mirroring and accounting for the malaises plaguing judiciary have been made. Earlier, similar committees had been formed that had recommended critical measures in restructuring judiciary but these were shelved, and not implemented.
For example, a committee headed by Justice Ram Prasad Shrestha was formed when Chief Justice Anup Raj Sharma had been at the helm of affairs a few years ago. The then committee's suggestions were also scathing and trenchant but, as reported, resistance from within the judiciary against their implementation was so strong that the move was, as reported, effectively scuttled. Similarly, the study report, presented by Nepal Bar Association, has been shelved time and again indicating that the commitment to re-engineer and reform judiciary has been totally lacking.

Quick scanning
A quick scanning of the issues raised in the Justice Karki panel report as brought to fore with due highlight by national media shows that the concerns regarding the problems in the administration of justice have not been new but these have been reaffirmed, reiterated and re-emphasised time and again. Main points articulated in the report restate, among others, that the court decisions have not been found mostly fair and objective but delivered coming under the lures and influences of various vested interests.
Moreover, pressures from different extra-judicial quarters, faulty and flawed process of appointing justices have brought in incompetent and inexperienced hands as judges. Likewise, possibility of bench shopping exists, according to the report, due to pervasive influence of brokers or intermediaries (bichauliyas) within the judicial process. Furthermore, the report is also critical of lawyers and advocates practicing as attorney in judiciary. The report alleges that the lawyers defraud and fleece the clients as brokers and intermediating agents misrepresenting that they will build informal rapport to bribe judges concerned so as to peddle influence to deliver decision to the favor of this or that side.
Moreover, the report raises objection to the provision that exalts the chief justice as one of the members in the Constitutional Council which gives rise to conflict of interests when the Council’s decisions are contested and challenged in the court of law. According to the report, the hearings on the cases questioning the Council’s exercise of authority have not been sped up due to this reason. Even the effectiveness and performance of the constitutional bench of the Supreme Court has been questioned that, according to the report, needs a concrete reform. Moreover, the role of Judicial Council has been criticised especially due to the fact that the undue influence of politically powerfuls have rendered the appointment of justices an injudicious and ludicrous exercise.
The depiction of the maladies wrecking the judiciary in Nepal by the Justice Karki Panel report resonates with several well acknowledged reports including that of the Transparency International and International Commission of Jurists, etc., that discuss the deep seated malaises striking at the vitals of judiciary not only of Nepal but also other democratising nations in the world in Asia, Africa and Latin America. The panel report has suggested various measures to address the issues so as to democratize the judicial system as do the various international study reports that go unimplemented most of the time
What needs to be emphasised that corrupt practices in judiciary jeopardise the fabric of justice delivery. It not only undermines the courts’ credibility, but also erodes trust in its impartiality and fairness. As aptly noted in the Karki panel report, judicial corruptibility harms all the important and core functions of judiciary including dispute resolution, law adjudication, protection of citizen rights and their fulfillment. Corrupt practices impact the accountability function that the judiciary needs to perform in a democratic system including ensuring accessibility of justice, securing integrity of political rules of the game, and sanctioning government actors when they act in violation of the provisions of rule of the law.
In fact, influences exerted on the functioning of the judges take different forms. Some are clearly illegal like bribes, blackmail, threats, violence, and intimidation while other forms of undue influence stem from the ways in which relations between the judiciary and other arms of government are organised. They also reflect a legal and political milieu where judges are expected to defer to political authorities and work to serve their interests.

Responsible organ
Where the responsible organ is perceived to appoint the party loyalists to the bench like in Nepal, it damages trust in the judiciary. As the executive is widely perceived to decisively influence who are appointed as judges – even when there are rules and institutions in place to prevent this from happening, it is very important to ensure that judges are recruited based on objective criteria related with their character, integrity and competence.
Though the landmark judgments delivered by the court time and again in Nepal have shored up the image of the judiciary to vindicate substantively that judiciary can rise above all partisan considerations, there is a need to ensure the independence and impartiality of judges are protected in both functional and structural terms. The Karki panel report needs to be implemented to make justice administration in the country credible and trustworthy as pledged in the federal constitution of Nepal.

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