Wrong debate

Published On: January 18, 2017 12:45 AM NPT By: Republica  | @RepublicaNepal


New judge nominations 
There is a controversy whenever the Judicial Council appoints new judges, to the Supreme Court or other lower courts. The controversy is mostly centered on political 
connections of appointed judges. The political parties (and their representatives in the legal profession) that feel legal professionals close to them have not been adequately represented in the new appointments cry foul. This time it is the turn of government attorneys to express their disappointment with the Judicial Council’s nomination of 80 new judges at the seven high courts. They argue that the council, which included just one government attorney among the 80 nominees, has done them great injustice by 
ignoring their contribution. They have threatened to stop work if the council decision is not reviewed.  Nepal Bar Association (NBA), the umbrella organization of lawyers in Nepal, has also expressed its dissatisfaction over the recommendations. NBA, now led by a faction close to Nepali Congress, was apparently unhappy that far too many lawyers close to the ruling Maoist party were nominated, at the expense of the lawyers close to Congress. Meanwhile, some Madheshi parties are unhappy that the vast majority of new nominees come from the Khas-Arya community and that there are not enough Madheshis among the proposed names. 

We believe that the whole debate is headed in the wrong direction. Rather than debating the appropriate level of representation from political parties or ethnic communities the debate should rather be on the system of their appointment. For instance changes in the shape of the Judicial Council have been considered several times, by governments led by different political parties at different times. One argument is that the council should have more career lawyers instead of political appointees. Currently, the government directly appoints two of the five council members, while the NBA makes one appointment, with the two remaining seats going to the Chief Justice and the senior-most Supreme Court judge. Since the NBA chief is also picked along political lines, it might legitimately be argued that political appointees have a majority in the council. 

Perhaps time has come to make the council more independent of such influence-peddling. Then there is the tricky issue of making the judiciary more inclusive. The choice between inclusion and merit is ever easy, as the persistent constitutional disagreements over adequate representation of marginalized communities in national polity 
amply illustrate. 

But even though successive governments have talked about reforming the judicial council, they have not been serious. For instance although the major political parties discussed the issue of such reforms in the course of finalizing the new constitution, they ultimately decided to retain the old provisions on the shape of the council. The constitution is also vague on representation of marginalized communities in the judiciary, as it only mentions that such representation should be ‘inclusive’ without laying out the actual basis for such inclusion. All this suggests that at least the major parties are happy with the current system of division of spoils in the judiciary. A truly independent and efficient judiciary is still a stuff of imagination in Nepal.   

 


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