Nepal: Political Puzzle in Judiciary « Khabarhub
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Nepal: Political Puzzle in Judiciary


28 November 2021  

Time taken to read : 10 Minute


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Nepal is in trouble again and this time in its judicial system. Its history is replete with problems in the Chief Executive and at times in the Parliament.

The country’s security system was also not spared in the past. It seems that deeper malaise of politics, politicization, and its perversity is unveiled in every agency and agent in Nepal’s political system.

A case of Chief Justice Cholendra SJBR’s transgression of the law, powers, functions, and position since he apprenticed and was inducted in the judicial branch of government.

He was embroiled in cases of breaching, tampering, and manipulating the rule of law. However, his verdict to overturn the dissolution of the Federal Parliament by the Communist Government of Nepal led by Khadga Prasad Oli has reinstated it.

But bargaining or horse-trading has been disclosed between the Chief Justice and the Chief Executive on the allocation of persons of choice in the government that led to the sudden denigration of nexus between the two branches of government.

This is a categorical violation of principles of independence, autonomy, self-governance, capacity, and integrity of a judicial system.

Behind the back door channel, there are exercises to Chief Justice Cholendra to relieve him from his duties. Media is buzzing on this sordid judicial affair when news of political conflict often erupts in shaky politics, the result of liquid times.

A case of clear corruption, nepotism, and favoritism at the higher echelons were a glaring example of tarnished image and ideals of pillars of government and governance. What will one of the three branches of government do?

What does the Federal Parliament or the Federal Executive in the coming days fire any ammunition for policy decisions to resolve this chaotic problem that undermines norms and values of democracy?

An assault on democracy has been happening since the restoration of democracy by the late King Birendra in 1990 A. D. Nepal could not relieve from the burden of democracy that has shown signs of political disorder, political decay, and polity dysfunction.

Similar cases of justices and Chief Justice of Nepal for example Mr. Khil Raj Regmi and Ms. Sushila Karki who came under the crossfire of brook in their jurisdictions from political and judicial questions.

This denigrated an institution that has not come under parliamentary watch or any other constitutional oversight. It thus exposes an old legacy of modus operandi of the state, regime, and government and its fallout in judicial governance in Nepal.

An intimation of partisan interests making inroads into the judiciary is not surprising given the excessive indulgence in everyday politics.

The web of politics and justice should be under a scanner and a sharp focus on its good governance (capacity and independence), anti-corruption, accountability, integrity and ethics or abiding by its overall universal norms and values.

Nepal is always at a crossroads in the polity that is in a deep crisis-ridden phenomenon. We cannot blame the state and society when they are not culpable for this scenario or the theatrical nightmare.

This erratic state of affairs needs a balanced approach to reflectivism and rationalism. It means to recreate our imagination of the state apparatus that does justice to the people in dire need of its efficacy. After three decades of 1990, democracy has seen progress too.

However, the political predicament is common due to the rising literate population and promoting knowledge capital to bridge the gap between those who have power and the powerless or the plebeians and the patricians – the legacy of Nepal’s sociology.

Leadership in prudence and jurisprudence would see better governance in the organs of the state with a division of power between three tiers, and checks and balances in the political system.

The government of Nepal has stepped in to resolve this dispute between a legal practitioner and justices to oust the Chief Justice of his misdeeds.

Premier Deuba directed the portfolio Minister of Law and Justice to facilitate resolving this prolonging issue and demonstration that obstructs routine business of the rule adjudication department of Nepal.

An Americanized version is in the offing in Nepal’s judiciary if one portends. Our idea of justice is getting undermined due to corruption, social status, and the legacy of dregs in our judicial system having its original inception in the 1950s under the patronage of royal engineering.

The delivery of justice is in limbo when those seeking service are deprived of getting it in time when business is as usual.

Deuba’s approach to listen, meditate and resolve this resignation demand of the legal society is lukewarm. Political society at first had no comment except the Oli groups which found an opportune moment to disregard the contempt of court to avenge its ouster from the Chief Executive.

Behind the back door channel, there are exercises to Chief Justice Cholendra to relieve him from his duties. Media is buzzing on this sordid judicial affair when news of political conflict often erupts in shaky politics, the result of liquid times.

Verbal conflict, ephemeral hedonistic tensions, and spontaneous remarks are commonly evinced by the Platonic luxuries of a democratic idealizing state. Deuba et al reiterated the observance of the principles and practices of the separation of powers of the organs of the government.

International rights groups and agencies in coalition demanded a swift and effective investigation of such allegations leveled against the Chief Justice.

International Commission of Jurists (ICJ), Human Rights Watch, and Amnesty International Nepal underline to restore immediately public trust, credibility, and faith in the justice system according to the provisions of the Constitution of Nepal, 2015 A. D.

They had issued a collective demarche in Geneva on 12 November 2021 to secure principles, norms, values and integrity of the judiciary in Nepal. On this edge of the untold threats to functional democracy in Nepal, judicial reform reports prepared by the erstwhile justices need instantaneous implementation.

There is a provision in the Constitution on Chapter 4 on State’s directive principles, policy, and responsibility that has three clauses on judicial governance, dispute resolution in ordinary affairs through reconciliation, mediation and alternative options, and anticorruption to adhere in the article entitled Justice and Punitive Provision Related Policy.

Correspondingly, Article 153 of the Judicial Council can oversee judicial governance from Justices and Judicial Administration.

So this provision is attracted to maintain the benchmark of the judiciary. Likewise, the Judicial Service Commission administers similar standards among those judicial service holders.

These provisions are to be applied before impeachment in respective cases of meting out punishment or reward. It seems popular or high sounding to file in the Federal Parliament proceedings at first.

That’s a simple understanding of law administration, judicial review, judicial activism, and its consistency or a knack to deliver an impartial verdict of the court proceedings. Criticisms valid can only be taken not its per se.

But its resolution should find avenues in those agencies where it should be settled first. It can avoid political bickering and maintain systemic functional operations.

Otherwise, impeachment against Chief Justice and other justices happen when Article 101 of the Constitution states one-fourth of lawmakers of the House of Representatives register it.

An Eleven Member Impeachment Recommendation Committee would verify the investigation in this matter to approve proceedings if found guilty or convicted to relieve them from their duties and responsibility. This is the punishment to evict them from the Office of Justice.

Ultimately, it is about trends and the root causes of judicial bad governance. Justice is political and partisan would ruin the independence and impartiality of the judiciary as a political scientist.

An Americanized version is in the offing in Nepal’s judiciary if one portends. Our idea of justice is getting undermined due to corruption, social status, and the legacy of dregs in our judicial system having its original inception in the 1950s under the patronage of royal engineering.

The responsibility lies with persons who uphold liberty, justice, and truth, and in this case, it applies to judicial adjudicators and allied intellectuals, and practitioners of this sector.

As mentioned before, partisan interests inside the judiciary are spoiling the idea of justice or the interpretation and administration or adjudication of the judicial system based on ideological temptations.

It is not the question that the resignation of Chief Justice alone would resolve this bad legacy. But also temperament and working code of conduct of legal professionals that is based on integrity would achieve justice in the state and society of Nepal and serve our life-world community.

Legal impunity has to end by all – the power holders and those who grant consent to such powers abide by the rule of law.

That’s a simple understanding of law administration, judicial review, judicial activism, and its consistency or a knack to deliver an impartial verdict of the court proceedings. Criticisms valid can only be taken not its per see.

(Rajeev Kunwar is a Ph.D. candidate at Tribhuvan University)

Publish Date : 28 November 2021 08:48 AM

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