A right balance is required for the judicial reforms of Nepal

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Nepal’s judiciary finds itself at an inflection point. Allegations of political meddling in judicial affairs have tarnished the image of this vital pillar of democracy. In response, the Nepal Bar Association (NBA) has proposed sweeping constitutional reforms aimed at insulating the judiciary from external interference. However, these proposals themselves raise important questions about overcorrecting by concentrating excessive power within the NBA. As the nation charts a path forward, it must critically analyze the pros and cons to strike the right balance between judicial independence and accountability. The pillars of Nepal’s democracy are being stress-tested. Serious allegations have emerged about political interference corroding the independence of the nation’s judiciary. From judges making commitments to party leaders to gain appointments to verdicts being swayed by external influences – the accusations cut to the core of basic rule of law principles.

Diagnosed but overprescribed?

There is merit in the NBA’s diagnosis highlighting concerning instances where the principles of an impartial judiciary have arguably been compromised. Judges being influenced through appointment processes controlled by political actors, or verdicts being shaped by external factors beyond just the letters of the law – such allegations cannot be ignored if true. Minimizing undue interference is crucial for upholding an independent judiciary as a robust check on the other branches of government.

To remedy this, the NBA proposes amending the constitution to restructure the judicial council that vets and recommends judicial appointments. It suggests nominating members over 65 years old who have retired from active legal practice. While seeking experience is understandable, this age criterion raises questions about insular control by an “old guard” disconnected from contemporary realities.  More concerning, the NBA seeks to eliminate the system of parliamentary hearings and public confirmation of judicial appointments. While intended to prevent judges from making commitments to politicians, removing this oversight step concentrates immense power solely within the judicial council dominated by the bar’s nominees. It also undercuts the democratic accountability that public scrutiny provides.  The proposals to increase age limits for judges at all levels and reduce the Supreme Court’s jurisdiction also seem arbitrary. Rather than nuanced solutions, these blunt measures could create other systemic jams and unintended barriers for skilled legal minds to ascend to the highest benches.

The dangers of overcompensation

Giving the NBA effective control over the vetting and selection of judicial candidates, as well as determining their competence, the proposals open the door to legitimate scrutiny. Charges of cronyism, nepotism and bias within the insular legal fraternity could easily emerge if one gatekeeper simply replaces another in controlling judicial appointments.  Eliminating parliamentary oversight and public input without a robust alternative accountability mechanism is troubling from a democratic lens. An entirely self-regulated judiciary, free from all external checks and balances, would undermine healthy separations of power.

There are global examples of relatively de-politicized yet still transparent judicial appointment processes that Nepal could learn from. The UK’s Independent Appointments Commission allows nominations across the legal field to be filtered through a non-partisan, merit-based vetting system.

Germany’s process involves cross-party parliamentary input on appointments from candidates pre-screened by expert panels.  For Nepal, one path could be a dedicated judicial appointment body comprised of respected voices from the bar, academia, civic organizations and other impartial stakeholders. This body’s recommendations could hold significant weight while still allowing public feedback and legislative advice to uphold democratic legitimacy.

A holistic approach

Fostering an independent judiciary is an ongoing endeavour requiring deft calibration – not judicial overcompensation. While reducing undue political interference is valid, the reform process must avoid the pitfalls of throwing out the ‘baby with the bathwater.’

Rather than fully curtailing the Supreme Court’s jurisdiction, a nuanced solution could be establishing separate constitutional courts or benches to handle high-stakes matters. This would allow the apex court to focus on its remaining substantial caseload. Similarly, instead of blanket age limits, holistic evaluations assessing judicial competence through criteria like experience, litigation skills and peer reviews may prove more comprehensive.  Most crucially, any reform process must be open, inclusive and grounded in the public trust across Nepali society. Proactively bringing together representatives from all key spheres – the bar, the bench, political parties, civil society, media and citizens – will be vital for building consensus. The NBA’s proposals highlight systemic issues in the judiciary needing redressal. However, their solutions risk being seen as insular, top-down diktats subjecting the process to the same opaqueness they allegedly seek to eliminate from judicial affairs.

At its core, this reform process demands carefully balancing two fundamental principles – judicial independence and judicial accountability. An impartial judiciary, free from external influence and pressure, is indispensable for upholding the rule of law. However, this independence is not an unbridled license for insularity or exercising power without any accountability.

Global best practices

Countries globally have grappled with striking this balance through their judicial appointment and oversight mechanisms. Some pathways Nepal could explore: Judicial Appointments Commissions:  Bodies like the UK’s independent Judicial Appointments Commission allow nominations from across the legal field to be filtered through an impartial, competitive vetting process examining criteria like experience, merit and institutional safeguards. Public feedback is also incorporated. Legislative Input: While directly elected politicians should not control judicial appointments, mechanisms for legislative advice and inputs can be created. South Africa has a multi-party parliamentary committee that provides oversight by vetting candidates’ professional qualifications. Strengthening Judicial Autonomy: Reducing bureaucratic obligations that detract from core duties, increasing resources and staffing, and harmonising practices between courts – such measures can boost the judiciary’s ability to self-regulate and maintain high standards.

A narrative blueprint for reform

For Nepal, perhaps a two-pronged way forward could be formulated such as, first, establishing a dedicated judicial appointments commission comprised of respected voices from the bar, academia, civic groups and other impartial stakeholders. This body’s recommendations on candidates could hold significant weight while still allowing public reviews and legislative advice to maintain transparency.  Concurrently, enhancing judicial autonomy by streamlining the court system, ensuring sufficient material and human resources, mandating pronounced judgments with robust reasoning, and leveraging modern technology for the efficient administration of justice. This balanced approach attempts to minimize perceived external interference in judicial matters. But it still preserves democratic checks through public scrutiny and cross-stakeholder vetting of appointments, preventing any one institutional gatekeeper from monopolizing authority. Bolstering judicial independence and accountability should not be an either/or proposition. The path Nepal charts must strengthen both in a calibrated manner. Deft navigation, avoiding overcorrections or overreach by any single group, will be crucial.

An independent and accountable judiciary is the corner point of any flourishing democracy. It safeguards citizen rights, checks governmental overreach, and exemplifies the transcendent principle of equality before the law that no individual or institution can flout with impunity. As Nepal weighs much-needed judicial reforms, it must remain centred on the nobility of these ideals. Pluralistic and people-driven, the process must be. Building cross-stakeholder faith and consensus is paramount for any restructuring to be accepted as legitimate and enduring.  The NBA’s proposals are laudable for catalyzing this conversation. However, they must evolve through constructive dialogue to address concerns about concentrating disproportionate power and opening the process to charges of insularity or overcorrection. Democracy itself rests upon a fine balance – majority rule-bound by inviolable constitutional guardrails protecting minority rights. So too must Nepal’s judicial reformation strike the right equilibrium between insulating the institutions from malign interference, while upholding transparency and preventing any singular group from monopolizing the levers of oversight. With courage to confront systemic challenges, wisdom to avoid overcompensation and unity of purpose across all sections of society, Nepal can construct the robust, independent, and accountable judicial system its people deserve – a proud hallmark of democratic plurality capable of standing the test of time.

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Chaudhary is a law student at Nepal Law Campus.

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