Cholendra Shumsher JB Rana, one of the most controversial chief justices in Nepal's judicial history, has just left; but the judiciary's pressing challenges are still there.

There is mass frustration with the judiciary and it has been rapidly losing public trust. Although people still go to the judiciary to seek legal remedy, they often do so with doubts or little expectation that justice will be served. Such frustration is not a recent phenomenon, but it reached a new height during Rana's tenure.

In a society which is founded on democratic norms and values, the judiciary acts as the guardian of democracy. It is entrusted with the ultimate powers and duties to protect the constitution, and defend the rule of law and human rights. The system of checks and balances becomes futile if the judiciary fails to perform its duties effectively.

The Deuba administration’s recent attempt to amend the National Criminal Procedure (Code) Act 2017 through an ordinance was guided by a motive to get certain politicians out of jail in exchange for their support to form a coalition government.

The constitution and the International Covenant on Civil and Political Rights, to which Nepal is a party, both do not permit such an amendment. Even then Prime Minister Deuba had the gall to choose the ordinance route when the country was going to the polls anyway that would pave the way for a new government.

His boldness to ride roughshod over the law comes from the Supreme Court's failure to prevent misuse by successive governments of the power to issue ordinances.

Appointment system

Despite the constitutional guarantee of judicial independence, what has hindered the judiciary from becoming more vibrant and effective? There is a broad consensus that the appointment system is responsible for the current judicial mess. The politicisation of the appointment process has enabled self-centred, corrupt, politically loyal and motivated persons to seek higher judicial positions. There are many examples of the misuse of the appointment system in the judiciary, but Cholendra Rana is its worst manifestation.

The flaws in the judicial appointment system should therefore be identified and fixed. A consultative approach should be employed for this purpose. A thorough review of the current laws, procedures and practices governing the selection process on the basis of internationally accepted standards and best practices is necessary. The legal regime on judicial appointment might need to be revised to incorporate the following requirements: Compulsory background check of the candidate, open and transparent selection process (advertisement of vacancy, public vetting of candidates, and evaluation of candidates against the pre-determined criteria for selection) and duty to disclose the reasons and grounds for the appointment. In addition, the parliamentary hearing system has so far been a ritual, and it too should be reviewed thoroughly.

Reforms in the judicial appointment system are not enough. In order to restore public trust in the judiciary which has been heavily eroded, some therapeutic measures are also desirable.

What Kenya did in this regard is unique. The Kenyan constitution of 2010 not only stipulates certain principles of democracy, integrity and good governance that are binding on the judiciary too, but it also has a judicial vetting system. Judges are required to undergo a rigorous process of vetting against the specified criteria. The law gives two choices: Submit to the vetting process or take voluntary retirement. According to the vetting law, a judge or magistrate is removed for reasons of corruption, unethical conduct, professional malpractice and abdication of duty, incompetency due to qualifications, past favouritism, criminal offence or abuse of office.

An independent Vetting Board—comprising three members, including the chair and vice-chair, from among Kenyan lawyers; three members from Kenyan civil society; and three serving or retired judges from Commonwealth countries—was established by the Vetting of Judges and Magistrates Act 2011. As there were mixed reactions to the vetting initiative, its impact (positive or adverse) deserves to be independently assessed, and lessons should definitely be learned from the Kenyan experience to clean up our judiciary.

Zero tolerance

Other measures that deserve to be considered to make the judiciary effective include ensuring zero tolerance against judicial corruption through prompt and thorough inquiry and action; making the constitutional bench work effectively through relaxation of procedures for the initial/justiciability hearing; erasing the feudal image of the judiciary by promoting a democratic judicial culture; introducing a fixed-term judicial leadership (minimum three years to maximum seven years tenure for the chief justice) and independent monitoring of judicial accountability initiatives by Bar Associations, civil society and legal academia. The system of impeachment, which is a serious judicial process within Parliament, should also be revisited to prevent politicisation and ensure a high standard of fairness.

Last but not least, judicial reform should be a matter of serious concern for citizens from every walk of life. It should not be left to a narrow pool of judicial and legal sector stakeholders. A wide range of stakeholders should come forward to scrutinise the judicial system, make constructive criticism or support legitimate efforts towards reform.