On the Crisis of Judges Appointments Question of Independence of Judiciary . . . .
Prakash Bom
November 17, 2008
Anxiety of the status quo ante pundits of justice system of Nepal over the demand of quota system for the inclusiveness that challenges the age-old tradition of appointment of judges, which is exclusively feudalistic – "dominated by upper caste group"; which is processed arbitrarily without scrutiny of any sort of competitive democratic method is the issue.
Even the activation of status quo ante constitutional provision for judiciary board of written exam competition for judges´ appointments will not make the process inclusive. Therefore, the provisions of reservation of quota for those excluded have become immediate issue, which is by no means a democratic solution.
The quota system in long run will backfire and malfunction itself. But the necessity of quota system is due to the domain of exclusion by certain socio-economic class of people in the current working methods of government system. For example, the appointment of Supreme Court and Appellate Court judges by Judicial Council members and Law minister without scrutiny either through Judicial Council or Parliamentary hearing is undemocratic.
It is the status quo ante feudal mindset of people in judiciary position and law profession in Nepal that obstruct the vision and the courage for change with their wishful thinking to get more corrupt. If not, they must all be thinking along the line of federal government system. For they all know well that the current judiciary system will not only fail to provide the justice under federal government system but also will fail to establish the independence of judiciary. Therefore, their concern for independence of judiciary in regards to quota system is the status quo ante propaganda.
It has become obvious that the judges of Nepal and law professionals are unwilling to think along the line of federal government system for bringing about change in the entire justice system of Nepal. Instead they are inclined to status quo ante judiciary system in which their domain can be sustained within their network regardless of political challenges. There has not been a single leading lawyer or a judge on the horizon of Nepal who is enthusiastic about the federal government system for a new justice system that can guarantee the independence of judiciary of the Justice System of Nepal.
Even if the Interim Constitution has guaranteed the judiciary as the guardian of the fundamental rights and interpreter of the Constitution the current appointment method of justice system for Supreme Court and Appellate Court judges devoid of certain form of democratic scrutiny – Judiciary Council or Parliamentary hearing, the independent of judiciary cannot be established. Foremost of all, the current Judiciary Council must be restructured with the members from the elected members of Parliament by fifty percent.
It is obvious that the anxiety about the issue of quota system with the question of independence of judiciary by law professionals is not for the sake of independence of judiciary but is for the sake of their own stake in justice system. Otherwise, if they were honest then they would admit that Nepal´s judiciary system needs restructuring as per the federal government system based on the new constitution. Perhaps then their anxiety over the demand of quota system could be justified with the democratic solution based on federal government system.
For their information under the federal government system the Supreme Court Judges including Chief Justice(s) are nominated to be appointed by the central (federal) government (Chief Justices of Supreme Court nominated by the President or Prime Minister and federal Appellate Court judges with coordination of Law Ministry and Judiciary Council members) for Parliamentary hearing or scrutiny. Except for Federal Appeals Courts´ all other Appellate Court or Court of Appeals judges whether for State Courts´ or Local are elected on term basis during general elections of state and local governments.
The reservation of quota system for the nomination of Supreme Court and Federal Appellate Courts judges to be appointed by the federal government for the Parliamentary hearing or the scrutiny of the Parliamentary Judiciary Commission is the right democratic solution for the current justice system of a feudal nation like Nepal. In my opinion, the term for Supreme Courts and Federal Appellate Courts judges must be set to SIX years for each nomination. It is up to the government to re-nominate qualified judges for the appointment hearing.
But the judges must compete for each term in the State and Local Appellate Courts in state and local elections. All state and local law enforcement officials such as attorney too must be elected on term basis. This is how competitive inclusiveness in democracy can be established. Otherwise, the reservation of quota system all over the government levels will undermine the competitive inclusive electoral system in democracy.
It is lately observed that the Maoist led government is doing away with the Parliamentary hearing procedure for the political appointments that GP Koirala´s Interim Government had initiated. However, it is the responsibility of the members of Constituent Assembly to object such political appointments without Parliamentary hearing.
The tradition of political appointments for any level of position in the government without Parliamentary hearing is undemocratic. Without such democratic method a democratic government becomes dictator for the reason of lousiness and irresponsibility to the services of nation and people of Nepal. Such an appointment for the sake of party politics is a form of pure dictatorship be feudal or communist.
None of the major political party communist or socialist democratic or feudal-royalist has succeeded to overcome their practice of over-indulgence of the status quo ante tradition of appointment without Parliamentary hearing or any other means of democratic scrutiny. Obviously, they all like to do away with but such a practice will neither bring any pragmatic change in the political behavior of political party leaderships nor socio-political and economic changes in the lives of people.
The current appointment system cannot be fair and just except for appointees´ fortune depending on his or her network with the members of Judiciary Council and skills of lobbying, and the main appointer Chief Justice´s self-interest for bestowing opportunity to his or her person of choice. As a result, the current Judiciary Council appointment system for judges clearly had undermined and will undermine the prospect of democracy for justice, peace and prosperity of people of Nepal. As a result, it has not ever before nor it will in the future establish the independence of judiciary of Justice System of Nepal.
Full title: "On the Crisis of Judges Appointments Question of Independence of Judiciary of the Most Exclusive Justice System of Nepal"
Even the activation of status quo ante constitutional provision for judiciary board of written exam competition for judges´ appointments will not make the process inclusive. Therefore, the provisions of reservation of quota for those excluded have become immediate issue, which is by no means a democratic solution.
The quota system in long run will backfire and malfunction itself. But the necessity of quota system is due to the domain of exclusion by certain socio-economic class of people in the current working methods of government system. For example, the appointment of Supreme Court and Appellate Court judges by Judicial Council members and Law minister without scrutiny either through Judicial Council or Parliamentary hearing is undemocratic.
It is the status quo ante feudal mindset of people in judiciary position and law profession in Nepal that obstruct the vision and the courage for change with their wishful thinking to get more corrupt. If not, they must all be thinking along the line of federal government system. For they all know well that the current judiciary system will not only fail to provide the justice under federal government system but also will fail to establish the independence of judiciary. Therefore, their concern for independence of judiciary in regards to quota system is the status quo ante propaganda.
It has become obvious that the judges of Nepal and law professionals are unwilling to think along the line of federal government system for bringing about change in the entire justice system of Nepal. Instead they are inclined to status quo ante judiciary system in which their domain can be sustained within their network regardless of political challenges. There has not been a single leading lawyer or a judge on the horizon of Nepal who is enthusiastic about the federal government system for a new justice system that can guarantee the independence of judiciary of the Justice System of Nepal.
Even if the Interim Constitution has guaranteed the judiciary as the guardian of the fundamental rights and interpreter of the Constitution the current appointment method of justice system for Supreme Court and Appellate Court judges devoid of certain form of democratic scrutiny – Judiciary Council or Parliamentary hearing, the independent of judiciary cannot be established. Foremost of all, the current Judiciary Council must be restructured with the members from the elected members of Parliament by fifty percent.
It is obvious that the anxiety about the issue of quota system with the question of independence of judiciary by law professionals is not for the sake of independence of judiciary but is for the sake of their own stake in justice system. Otherwise, if they were honest then they would admit that Nepal´s judiciary system needs restructuring as per the federal government system based on the new constitution. Perhaps then their anxiety over the demand of quota system could be justified with the democratic solution based on federal government system.
For their information under the federal government system the Supreme Court Judges including Chief Justice(s) are nominated to be appointed by the central (federal) government (Chief Justices of Supreme Court nominated by the President or Prime Minister and federal Appellate Court judges with coordination of Law Ministry and Judiciary Council members) for Parliamentary hearing or scrutiny. Except for Federal Appeals Courts´ all other Appellate Court or Court of Appeals judges whether for State Courts´ or Local are elected on term basis during general elections of state and local governments.
The reservation of quota system for the nomination of Supreme Court and Federal Appellate Courts judges to be appointed by the federal government for the Parliamentary hearing or the scrutiny of the Parliamentary Judiciary Commission is the right democratic solution for the current justice system of a feudal nation like Nepal. In my opinion, the term for Supreme Courts and Federal Appellate Courts judges must be set to SIX years for each nomination. It is up to the government to re-nominate qualified judges for the appointment hearing.
But the judges must compete for each term in the State and Local Appellate Courts in state and local elections. All state and local law enforcement officials such as attorney too must be elected on term basis. This is how competitive inclusiveness in democracy can be established. Otherwise, the reservation of quota system all over the government levels will undermine the competitive inclusive electoral system in democracy.
It is lately observed that the Maoist led government is doing away with the Parliamentary hearing procedure for the political appointments that GP Koirala´s Interim Government had initiated. However, it is the responsibility of the members of Constituent Assembly to object such political appointments without Parliamentary hearing.
The tradition of political appointments for any level of position in the government without Parliamentary hearing is undemocratic. Without such democratic method a democratic government becomes dictator for the reason of lousiness and irresponsibility to the services of nation and people of Nepal. Such an appointment for the sake of party politics is a form of pure dictatorship be feudal or communist.
None of the major political party communist or socialist democratic or feudal-royalist has succeeded to overcome their practice of over-indulgence of the status quo ante tradition of appointment without Parliamentary hearing or any other means of democratic scrutiny. Obviously, they all like to do away with but such a practice will neither bring any pragmatic change in the political behavior of political party leaderships nor socio-political and economic changes in the lives of people.
The current appointment system cannot be fair and just except for appointees´ fortune depending on his or her network with the members of Judiciary Council and skills of lobbying, and the main appointer Chief Justice´s self-interest for bestowing opportunity to his or her person of choice. As a result, the current Judiciary Council appointment system for judges clearly had undermined and will undermine the prospect of democracy for justice, peace and prosperity of people of Nepal. As a result, it has not ever before nor it will in the future establish the independence of judiciary of Justice System of Nepal.
Full title: "On the Crisis of Judges Appointments Question of Independence of Judiciary of the Most Exclusive Justice System of Nepal"
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