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Status Quo against New Constitution of Nepal

Prakash Bom - 10/10/2009

In my opinion that those who opposed the bill that the Committee for Determining the Judicial System of Constituent Assembly has passed recently for appointing Supreme Court justices by the Parliament need further understanding on the question of check and balance of power in Democracy beyond the status quo or tradition for judicial independence.



For example, United Kingdom’s several hundred years long judicial tradition of hierarchy for justices’ appointment needed constitutional reform Act 2005 to remove the office of Lord Chancellor that acted as both a government minister and a judge. The reform was motivated by concerns that the historical admixture of legislative, judicial and executive power might not in conformance with the requirements of the European Convention on Human Rights. It is because a judicial officer having legislative or executive power is likely not to be considered sufficiently impartial to provide a fair trail.


In along the line of British Common Wealth judicial tradition Canada has set Supreme Court Act for the appointment of justices that even the Prime Minister appoints a person the eligibility for a Supreme Court justice need to be a judge of a superior court of a province or barrister or advocate with at least 10 years standing at the bar of a province. Even so in recent years, the appointment process has been modified to allow greater Parliamentary, provincial, and public consultation.



In 2004, the liberal Prime Minister Paul Martin announced that nominees to the Supreme Court of Canada would be reviewed by a special Parliamentary Committee, which would report their findings to Parliament. This led to the establishment of an ad hoc Parliamentary Committee, which reviewed nomination of justices Rosalie Abella and Louise Charron.



The power to appoint judges to the United States’ Supreme Court, as in Canada, is exercised by the executive branch of government, especially by the President of the United States of America. However, the presidential appointments to the United States Supreme Court must first be confirmed by the US Senate, which is part of the legislative branch of government.



In other words, the United States Senate has the power to reject or block the presidential appointment. Moreover, the confirmation proceedings usually involve a lengthy review process in which the Senate Judiciary Committee is permitted to directly question the President’s nominee.



Similarly, one of world’s oldest democratic nations France the appointments to the nation’s highest court, as in Canada and United States, reside within the executive branch of government, especially by French President. However, unlike Canada and the United States, an independent body oversees the appointment process known as Consell Superieur de la Magistrature, which task is to review and recommend potential court appointees to the French President. The purpose of the Consell Superieur de la Magistrature is to ensure judicial independence.



In comparisons with the standards of the reform of UK and Canada and the proceedings of the United States and France for appointing Supreme Court justices Nepal’s last 15 years recent tradition for appointing Supreme Court Justices has never ensured judicial independence. It seems as if the opponents such as Nepal Bar Association and NC president GP Koirala protest the new bill to keep the appointment standard as hierarchical as nepotistic in the name of judicial independence – obviously not less hierarchical and powerful than of India without any public scrutiny.



The Chief Justice of India, an executive chief and a Supreme Court judge, is appointed by president in consultation with other judges of the Supreme Court and High Courts in the States if the President may think it necessary (but not the monitory prerequisite).



Once Chief Justice is appoint then the Supreme Court judges are generally appointed on the basis of seniority and not on political preference. The appointment and conditions of the office of a Judge of a High Court of India, for example, is made by the President with the warrantee and consultation of the Chief Justice of India, and the governor of the state, without any public scrutiny or legislative proceedings for reviewing the appointments.

Therefore, if the opponents of the bill for appointing Supreme Court justices by the Parliament think that Parliament proceedings for reviewing appointments of Supreme Court justices undermine the judicial independence, then the Chief Justice of Supreme Court of Nepal as an executive chief and judge likely not to be considered sufficiently impartial to provide a fair trail. As a result, the appointment without the legislative reviewing might not be in conformance with the requirements of the European Convention on Human Rights.

On the contrary, if NBA and NC president GP Koirala think Indian system has ensured the judicial independence and need no reform as in UK and Canada then if such judicial system replicated in Nepal then as it is now the system will remain corrupt with the hierarchical dominance and appalling nepotism.



The political legacy that NC president GP Koirala is trying to carry on at this point as always overrules the quality and skills of all politicians in his party with the utter nepotism more than even hierarchical superiority. For example, GP Koirala’s politics to make his daughter Sujata Koirala the foreign minister, then member of Constituent Assembly and finally Prime Minister of Nepal cannot be different if the appointment of Supreme Court justices are not scrutinized by the Parliament proceeding.



On the other hand, why Nepal Bar Association is opposing the bill from the professional point of view for free competition on the basis of qualification is beyond my conception. If otherwise the members are obliged to the tradition for keeping up with the status quo out of their own professional fear for change.



If we think this is a Maoist bill then Maoist as hardliner communists cannot afford to trap themselves with such a bill and federal structure that nation has adopted for a democratic system. Any bill that gives people’s representatives in the Parliament right to review government proceedings through consultations is fairer than GP Koirala’s political legacy and Nepal Bar Association’s hiccup for professionalism.


If UML led government believe that Nepal’s achievements for establishing republic, adopting federal structure and bringing Maoists into mainstream politics are the most important for the nation then it must support bills that make people’s elected preventatives more responsible than their own political parties for drafting nation’s new constitution. At this point, Maoists obstruction to the Parliament proceeding is undemocratic self-annihilation.