Judicial accountability becomes a pressing concern when cases experience inefficient handling and unnecessary delays in the disposal process.
The lack of effective mechanisms to address complaints within and outside the judiciary leaves individuals grappling with prolonged delays feeling powerless.
Such inefficiencies not only compromise the timely delivery of justice but also tarnish the reputation of the judiciary as a crucial institution.
This erosion of trust may drive people to explore alternative methods for resolving their disputes, further undermining the public’s confidence in the legal system.
Creating avenues for people to voice grievances against a judge or judges and enforcing accountability through a separate mechanism or through the official appointment or disciplinary body, such as the Judicial Council of Nepal, is crucial.
Reforms in judicial management are pertinent in this context. Judges should take charge of case management and be adequately equipped with the necessary resources and capabilities.
While efforts have been made to introduce automated case hearing schedules to reduce the influence of court officers in scheduling daily hearings, this has not adequately addressed the needs and priorities of the litigants, leading to widespread discontent.
Bench failures in clearing the daily cause lists persist due to various reasons, including cases being assigned without considering their typical duration, judges not diligently clearing the lists, lawyers consuming unnecessary time during arguments, and improper preparation of the daily cause lists that do not align with the allotted judicial time for the day.
The significant challenges posed by key judicial appointments for vacant positions in the Nepali Supreme Court, coupled with the mounting case overload and internal management issues, underscore the need for a trusted judiciary.
These reasons continue to contribute to one of the most critical issues facing the judiciary on a daily basis, with far-reaching consequences for both the judiciary and the litigants.
This primarily stems from a management issue and significantly impacts judicial performance and the perception of the judiciary among the public.
The discretion of the Chief Justice in assigning cases to specific benches can be a significant concern.
The Chief Justice should have a proven track record of abilities, integrity, and leadership qualities.
They must possess qualities of judicial management, and specific guidelines should be provided for case assignments.
Presently, the Nepali judiciary employs a lottery system for assigning cases to various benches, relinquishing control over the management, thereby evading accountability for judicial performance.
This not only affects the Chief Justice but also leaves the entire judiciary with no response to the litigants in case of judicial shortcomings.
Moreover, the necessity of appropriate case assignments based on the particular expertise of certain judges remains unaddressed, leading to a significant lack of accountability.
Cases should be assigned to judges or benches based on established norms or guidelines developed within the judiciary. This process should be implemented with a functional mechanism that involves the Chief Justice and senior judges.
After being recommended by the Constitutional Council, the nominee must pass through the parliamentary hearing process, introducing political considerations once again.
Judicial leadership should be integrated into both judicial performance and accountability.
Judicial Appointments
The appointment mechanism is established by the Constitution of Nepal itself.
In the Nepali context, the judicial council comprises the Chief Justice, the most senior judge of the Supreme Court, the Justice Minister, the Prime Minister’s nominee, and representatives from the Nepal Bar Association.
This composition has disrupted the historically established balance, favoring a majority of judges within the council.
The rationale behind the inclusion of the Prime Minister’s representation is hardly understandable.
Along with the Law Minister and the Bar representatives, it has outweighed the judicial representation within the council, leading to the politicization of judicial appointments.
Consequently, the Chief Justice no longer has a definitive say in determining the suitability of a candidate for judgeship.
Instead, they must participate equally with other council members in the appointment negotiations.
The structure of the council appears inappropriate, and the reasoning behind the inclusion of Bar representatives instead of independent experts is unclear.
Additionally, nominees put forward by the council for Supreme Court judges must undergo confirmation through parliamentary hearings, which imposes an unnecessary political burden, creating a discrepancy between the presidential nomination and the senatorial confirmation in the parliamentary appointments.
This situation opens the door to the politicization of judicial appointments. A similar situation occurs with the appointment of the Chief Justice.
The position is recommended by a larger body led by the Prime Minister, involving heads of parliamentary bodies, including the Deputy Speaker and the leader of the main opposition political party.
After being recommended by the Constitutional Council, the nominee must pass through the parliamentary hearing process, introducing political considerations once again.
In essence, it suggests that politicians have overtly or covertly influenced the judicial appointment process.
The five-member Judicial Council, led by the Chief Justice, holds the authority to appoint judges and justices in Nepal.
All stakeholders must actively participate in the council to ensure merit-based appointments, thereby depoliticizing the judiciary and enhancing its credibility.
Establishing a robust appointment procedure is crucial to promote the impartiality of the judiciary.
Effective appointment procedures are essential to build a strong judicial system.
Transparent and proper procedures should be in place to select qualified candidates, ensuring that judges are appointed based on merit and qualifications rather than political considerations.
The power-sharing in judicial appointments has weakened the judiciary, undermining its integrity and hindering its effective functioning.
Subsequently, a policy must be devised to strike a balance between technological assistance in the judicial process and its harmonious use to aid in the exercise of judicial discretion.
The significant challenges posed by key judicial appointments for vacant positions in the Nepali Supreme Court, coupled with the mounting case overload and internal management issues, underscore the need for a trusted judiciary.
It is imperative to ensure fair and competent appointment of justices to bolster the credibility of the judiciary during this crisis.
Inclusion in the Judiciary
The national judiciary should be structured to provide the utmost representation of diverse sectors of national life.
Inclusion has been a constitutional imperative, yet it has not been fully realized within the judiciary.
This does not imply that merits should be disregarded. Enhancing the capacities of previously disadvantaged or underrepresented groups should be considered, and the possibilities for their inclusion should be explored.
The legitimacy of the judiciary will remain at risk until it is embraced by the public, until they see their own people on the benches.
People have the right to participate in the judiciary, and a policy must be developed to ensure maximum representation from various groups without compromising the fundamental qualifications for judgeship.
Ethical oversight of lawyers is essential, and establishing an independent mechanism to handle complaints against them, separate from the bar council, should be considered.
While the bar council could handle such complaints, they have not demonstrated the required level of impartiality and disinterest necessary for such cases.
Persistent professional biases may persist, undermining the effective handling of conflicts.
Complaints may include excessively high fees, delays in case proceedings, negligence, failure to appear for hearings, and a lack of diligence in case preparation.
Such conduct can lead to irreparable harm for litigants. Notably, litigants often struggle to recover the costs of litigation, including the fees paid to lawyers, even when they win their case.
Inadequate legal provisions for cost recovery, along with lawyers’ reluctance to provide receipts to clients for the fees paid, contribute to the non-recovery of costs incurred by litigants.
This issue has become a menace to the legal profession, tarnishing not only the reputation of individual lawyers but also the entire judicial process.
Cost recovery schemes should be integrated into the judicial process, requiring the cooperation of the lawyers’ professional body.
Artificial Intelligence
This presents both an opportunity and a challenge for the modern judiciary. Before the judiciary considers its utilization, there is a need for extensive introduction of AI within the judicial community to fully harness its benefits.
Many of our judiciaries are still unfamiliar with the fundamentals and potential applications of AI.
A technological shift in the judicial process is increasingly becoming essential and should be incorporated as part of the judiciary’s capacity building.
Subsequently, a policy must be devised to strike a balance between technological assistance in the judicial process and its harmonious use to aid in the exercise of judicial discretion.
Suggesting judicial audits to assess the state of affairs within the judiciary, conducted periodically by institutions other than the judiciary, would enhance credibility and acceptance among the general populace.
Given the complexity and sensitivity of this issue, the judiciary must have a thorough understanding of the scope and functioning of AI, leading to the development of a coherent and comprehensive policy.
Media trials and social media have posed serious threats to judicial independence, impartiality, effectiveness, and performance in various ways.
Detection, deterrence, and remediation are imperative, but inadequate laws and the unpreparedness of law enforcement agencies have led to numerous miscarriages of justice.
Collaboration with the information and communication sector for this purpose should be encouraged.
Judicial accessibility issues are pervasive across South Asia and Southeast Asia. Judicial resourcing and judicial autonomy are interconnected, with judiciaries perennially under-resourced.
They often bear the brunt of failings primarily due to resource constraints.
A policy should be formulated that recognizes the state’s responsibility to ensure adequate resources for the judiciary, necessitating negotiations between the two entities. Advocacy efforts in this regard would yield positive contributions.
Suggesting judicial audits to assess the state of affairs within the judiciary, conducted periodically by institutions other than the judiciary, would enhance credibility and acceptance among the general populace.
(The writer is former Chief Justice, Supreme Court of Nepal)
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