Immediately after Justice Bishowambhar Shrestha assumed the position of Chief Justice, an out-of-the-blue amendment inserted into the Judicial Council Rules late last month took the sitting judges of the High Court by surprise. In an instant, the inter-se seniority of High Court judges was altered: A judge who was higher in order of seniority the day before faced demotion the next day. This amendment having retrospective operation has the effect of placing gazetted special class judicial service officers receiving lateral appointments to the High Court to precede in rank over the serving judges of the High Court. The amendment introduced the date of appointment of a person to gazetted special class judicial service officers as the determinant for placing the person above the current cohort of High Court judges.

Both the Nepal Bar Association and Former Judges Forum severely criticised the amendments in their press releases saying it violated Article 141 (3) of the Constitution of Nepal. The Nepal Bar Association dubbed the amendments “regressive, discriminatory, prejudiced and arbitrary” while the Former Judges Forum reinforced the disapproval by adding that the amendments “encouraged anomalies and perverseness in the courts”. Ultimately, the issue has boiled down to whether or not amendments causing changes to the seniority has breached the conditions of service of the judges, a protection enshrined in Article 141 (3) of the constitution.

Preservation of service conditions and ensuring that they are not violated to the detriment of judges is considered one of the basic tenets of judicial independence. The other tenets theorised include ability of judges to decide matters impartially without improper influence from any quarter and security of tenure barring the executive, legislature or even the superior judges from removing them at their whim. When compared against these tenets, the provisions incorporated in the constitution to guarantee judicial independence are of acceptable standards. In spite of the laudable provisions, the judiciary experienced a series of successive upsets soon after the promulgation of the constitution.

Upheavals after constitution

In an unprecedented action, Sushila Karki, a serving chief justice, was made a target of an impeachment inquiry due to her conviction regarding the criteria for promotion to the chief of the police department, coming in between the stance taken by the executive. Gopal Parajuli, the chief justice after Sushila Karki, was relieved from the office by the secretary of the Judicial Council by issuing a letter lacking any legal basis. Before his abrupt removal, he was blamed for falsifying his age. Deepak Kumar Joshi was recommended by the Constitutional Council following Parajuli’s unceremonious ouster but he could not assume office because his nomination was vetoed by the Parliamentary Hearing Committee.

Some degree of stability instilled during the brief stint of Om Prakash Mishra did not last long. The tenure of Cholendra Shumsher JB Rana—his unhealthy hobnobbing with prime ministers, accusations of corruption, internal mutiny against him by judges, and the bar’s protests lasting several months—is a tragic story better left untold. After Rana, Hari Krishna Karki could serve in the post for only around two months because of unreasonable delays deliberately caused by the political actors. After these long episodes of turbulence, a stable and responsible judiciary is being expected during Justice Bishowambhar Shrestha’s term.

Inadequate protection of judicial independence in the constitution has been blamed for the occurrence of these incidents. Therefore, a variety of reform proposals have been put forward to prevent the conversion of these incidents or similar incidents into a regular phenomenon and to further augment the independence of the judiciary.

The first variety constitutes re-composition of both the Constitutional Council and the Judicial Council. The Constitutional Council needs to be recomposed because the role of the chief justice during the events that transpired was not leveraged towards balancing the prime minister and the opposition leader to ensure the integrity of the process, but rather was abused to induce bargaining in the appointments. The Judicial Council needs to be reconstituted because its composition is skewed in favour of political figures vis-à-vis judges and can impinge on judicial independence.

The second variety of reforms calls for abolishing the requirements to conduct parliamentary hearings. Ostensibly, the parliamentary hearing, which was designed to make judges accountable to the representatives of the people through reasoned deliberations, has sometimes morphed into a perfunctory procedure, and at other times into a platform to secure compromises from the nominees, thus failing to meet the intended constitutional setup.

The third category proposes to remove the provisions regarding automatic suspension of judges after the filing of an impeachment motion because it arguably violates the constitutional guarantee of due process, and could also be used as a potential weapon by Parliament to temporarily relieve judges from duty without following the entire steps of impeachment inquiry and dismissal. The fourth reform measure, recently put forward by the Bar, suggests fixing the tenure of judges receiving appointment at the Supreme Court to a period of seven years.

Independence without accountability

While the impetus and rationale for strengthening judicial independence can be deliberated and discussed, the scant focus on judicial accountability, the conjoined twin of judicial independence, in these reform proposals is underwhelming. Judges should also be held accountable for their actions and their duty to the population they serve, and before the law.

The notions of independence, impartiality, loyalty, virtue, equality, competence and diligence included in the Code of Conduct for Judges 2017 are mere ideal values lacking any force to make the judges accountable for their conduct and performance. Developing a framework that allows for regular, realistic, comparative and comprehensive audit of the performance of judicial work against a set of measurable standards could be one constructive step. But that is only a starting point. The fact that judiciary without accountability can be a threat to an independent judiciary should never be forgotten.