Situation of Nepali Judiciary and Necessary Reforms

Deepika Dangal

B.A.LLB., 3rd semester

Brief History of Nepali Judiciary:

Judiciary is one of the major organs of the government. As an interpreter of the constitution and the law, it is also the soul of democracy. Judiciary is an independent organ whose sole aim is to uphold justice. The judicial regime has undergone several changes throughout the history of Nepal, from the Kirant period through Lichhavi, Malla, and Rana period to the present. Though the uncodified mechanisms of adjudicating conflicts in the past can be traced all the way back to 750BC, the modern or the codified judiciary began with the enactment of Muluki Ain in 1854. Muluki Ain introduced a new regime of uniform crime and punishment all over Nepal. In the later years, the constitutions of 1959, 1962, and 1990 recognized the judiciary which functioned as per the existing laws and precedents propounded by the earlier courts. The Interim Constitution of Nepal, 2007 established an independent and competent system of justice with the purpose of transforming the concept of the rule of law into a reality (Katuwal, 2014).

Present Judiciary:

The Constitution of Nepal has the provision on Judiciary in Part 11 which mentions that Courts and other judicial bodies can exercise powers relating to justice. The constitution provides for a three-tier court system which consists of the Supreme Court, High Courts, and District Courts (Nepal G. o., 2015). Additionally, judicial committees can be formed at local levels for effective justice delivery. The Supreme Court is the apex court which has the final authority to interpret the constitution and the laws. Nepali Judiciary can inspect, supervise, review the cases, and give necessary directives to matters relating to judicial management. The Apex Court has the jurisdiction to declare void any law which is inconsistent with the constitution or higher law; to enforce the fundamental rights provided by the constitution; to issue appropriate orders and writs; and to originally try to settle cases, hear appeals, test judgments, revise cases.

The Judicial Committee has been formed at local levels as per provision in the constitution. The committee has 3 members who can settle cases at local levels in a short period of time which makes justice easily accessible. It has directives to settle different types of disputes through the regular judicial process including disputes of property, disputes over payment of wage, compensation over the damage of crops, and encroachment of private land, and divorce.

Nepal has introduced different strategic plans for enhancing Judiciary. The strategic plan of the Nepali Judiciary has made some efforts. It aims to establish a system of justice that is independent, less expensive, effective, accessible to the public, trustworthy, competent, speedy, to modify rule of law, ensure justice for all. The motive is to impart fair and impartial justice for all. It has planned to establish a Judiciary that is capable of executing the obligations vested by the Constitution whereas growing public trust over the judiciary. It analyzes the prevalent resources and work of the judiciary and to identify people‘s expectations from the judiciary, obligations, and challenges. It determines strategic interventions so as to face the identified responsibilities, challenges and formulate implementation plans and make essential financial resources where necessary (Nepal S. C., 2009-2014).

Judicial Jeopardy:

In the last few decades, the judiciary of Nepal is known for its inefficiency, inconsistency with its judgment, and at times blatant ignorance of the rule of law. The way the judiciary has been functioning; there are multitudes of problems from internal efficiency in handling backlogs of cases to bigger issues such as politicization of cases, problems in the appointment of judges, and shameless bribery and corruption within the institution of judiciary.

The maximum number of judges in the Apex Court of Nepal is 21. A rapid number of cases are rising which needs to be settled. The number of cases registered in the apex court in the outgoing Fiscal year 2018/19 was 33,710. Though the apex court solved 10,203 cases, 23507 cases were still pending (Luitel, 2019) It is crystal clear that settling cases on time by the present number of judges is beyond capacity. That’s why the number of Judges should be increased to settle cases. The appointment of Judges should be transparent.

Nepali Judiciary is still following traditional procedure or lengthy court procedure because of which justice is delayed. There are certain procedures to be followed while solving cases but Justice should be provided at the earliest possible.

Possible Reforms for countering inefficiency:

As a reform, dedicated criminal benches or wings within the court should be introduced. Cases that are especially harmful to the spirit and peace of the society such as criminal offenses like Murder, Rape, kidnapping, an offense against the state, etc. should be settled in those criminal benches. Additionally, the judiciary should have a fast track court to resolve petty issues like small stealing, pickpocketing et cetera. Most importantly, accounting for the disruption that Covid-19 has brought worldwide, courts should have a virtual presence where they accept online complaints and also hold online hearings and allow service seekers to keep track of their cases all in a virtual platform.

On Independence:

The Constitution of Nepal mentions in the preamble that the Judiciary of Nepal is independent, competent, and impartial. There is no question that it is independent theoretically. However, the independence of the judiciary is under doubt considering the presence of political interference in the Judiciary. From the appointment, qualification of judges to the decision of cases there is so-called Political interference in Judiciary. We are aware that Chief Justice and other Judges are appointed by the President and Chief Judge on the recommendation of the Constitutional Council and Judicial Council respectively. If we focus on the formation of the Constitutional Council and Judicial Council we can find out that there is an indirect influence of politics. The Constitutional Council is formed by 5 political Class members out of 6 and the Judicial Council is formed by 3 politics affiliated members out of 5. If the appointment of judges is influenced by politics then we cannot imagine a fair trial and case hearing. Judiciary is the pillar of the state. Justice should be provided impartially without any pressure.

Reforms: The most necessary reform that needs to be brought in the Nepalese Judiciary is an independent and impartial judiciary which is possible only when there is no interference of other organs in the appointment procedure of Judges. As a reform, the judges from the very district court should undergo a scoring method on the basis of cases solved, time taken, and the quality of judgment, among others. The information on all judges should be transparently maintained by an independent body and the appointment should be done in a transparent manner.

On Judgment:

The Nepalese Judiciary system should be fair. We are familiar that some verdicts of the court result in a loss of faith in the judiciary. In the past few years, the judiciary has come up with controversial judgments that have made citizens question the impartiality of courts. The case of Ranjan Koirala shows that the judiciary has misused its power. In this case, the Kathmandu District court has found Ranjan Koirala guilty of the murder of his wife. Later on, the same verdict was given by Patan appellate court. Then, when Koirala filed an appeal at the Supreme Court, the court reduced the lifetime imprisonment sentence to eight and a half years and used discretionary power (Nayak, 2020). The ground argued by the judge in the decision by victimizing the children was not fair. To apply discretionary power, the judge has to balance the personality of the offender within the circumstance in which the crime has been done and the gravity of the crime. Murder is a heinous crime and the offender was a senior police officer and was familiar with the law. This verdict presents a wrong image of the judiciary and gives a message that the Judiciary is no more impartial. The Judiciary should not be partial and a fair trial must be held. The Judiciary should be accountable and responsible for the verdict of cases.

Reform: The role of the judiciary is to ensure that people are treated fairly and that justice has been served to them. The norms, values, and existing precedents of the courts must be followed while delivering justice. Also, the court must be wary of the adage that 'Let Hundred Guilty Be Acquitted but One Innocent Should Not Be Convicted. Hence, the court must be just and wise in delivering judgments on criminal justice.

Bar and the Bench:

The Bar Association can play a role to make the judiciary effective and fair. In the present Scenario, this association is also not effective. Nepal Bar Association should be able to support the fair decision of the Supreme Court and question the decisions of the Supreme Court which is not fair. Both the lawyers and the judges should work hand in hand in law reform and ensuring rule of law.

Criminal Justice System:

The Judiciary alone cannot provide justice without the help of stellar enforcement and investigation mechanism. The Police, the public prosecutor, and all other stakeholders should take justice as their mantra and abide by the due process of law. It is familiar that the case of Nirmala Panta is not settled due to loopholes in our justice system. Such incidents should not be the norm of the justice system.

Corruption:

Corruption is the main problem that needs to be solved in the Judiciary. Even if there is an act against Corruption, there should be a provision of strict punishment to those who corrupt in the procedure of providing justice. The law should be implemented properly. Judiciary should seek and make plans to provide qualitative justice. Every law that is limited only on paper should be implemented effectively.

Conclusion:

The Judiciary although pronounced in black and white needs to be able to perform up to the genuine expectation of people. The judiciary should understand the need for time and adopt virtual ways of delivering services, increasing Access to Justice. The judiciary should also have an internal accountability system that will ensure no impunity. The judges should be appointed as per the caliber of the judges and not merely because of their political affiliations. The courts should have different track processes so as to deal with the ever-increasing backlogs. The judges, the lawyers, the public prosecutors, the criminal justice system should abide by a strong code of ethics. The laws and the precedents should be followed and not mischievously interpreted to serve the personal interest. Thus, the judiciary of Nepal can regain its losing respect and become an independent organ that people seek for justice.

References

Katuwal, D. J. (2014). Nepali Legal and Judicial System: An Overview. NJA Law Journal , 63-81.

Luitel, A. R. (2019, August 12). My Republica. How many Judges Nepal Needs .

Nayak, R. (2020, July 28). Online Khabar. Ranjan Koirala sentence: Question about Nepal’s judiciary and opportunity to correct mistake .

Nepal, G. o. (2015, February 28). Constitution Of Nepal. Retrieved from Nepal Law Commission: http://www.lawcommission.gov.np/en/archives/category/documents/prevailing-law/constitution/constitution-of-nepal

Nepal, S. C. (2009-2014). Second Five Year Strategic Plan OF Nepali Judiciary. Retrieved from Supreme Court : http://supremecourt.gov.np/web/assets/downloads/2nd_plan_English.pdf