An exciting couple of weeks in Nepali sports came to an end with the creditable exit of the national team from the ongoing cricket T20 World Cup being held on the other side of the globe. In the run-up to the tourney, though, there was some drama on the sidelines, having to do with the United States refusing to issue a visa to Nepal’s star cricketer Sandeep Lamichhane, twice, seemingly for his status as a rape accused (albeit cleared by Nepali courts).

Using the (perhaps-imperfect) metric of the number of Facebook ‘shares’ of the two stories as they appeared on the news portal, Onlinekhabar, Lamichhane’s consecutive US visa refusals were widely followed by Nepalis. The first, from May 22, was shared more than 11,000 times, while the second, from May 30, exceeded 15,000. The latter also had dozens of comments lambasting the US embassy but many also strongly supporting its decision to bar Lamichhane.

What struck me was how little interest was generated by another Onlinekhabar piece that appeared on May 22 itself. This was an interview with Purna Man Shakya, former president of the Supreme Court Bar Association and convenor of the committee set up by the Nepal Bar Association (NBA) to suggest reforms in Nepal’s judicial sector. Even though we can easily debate till we are blue in the face about what ails our nation, the conversation with Shakya, which dealt with current issues but also with potentially profound implications for Nepal, had received a measly 275 shares at the time of writing—one month later. So much for our priorities.

Old and older

Since the NBA document is not publicly available, we must rely on Shakya’s recounting of its content and the recommendations made. Most significantly, it appears that if the lawmakers were to seriously consider the NBA’s suggestions, it would require an amendment to the constitution, a move that the politicians have shied away from since the 2016 amendment, mainly to assuage India (as well as the agitating Madhes-based parties), and the 2020 amendment incorporating Nepal’s new map in the constitution, in a direct attempt to needle India. The rest of this article deals with aspects of what Shakya said, which includes some of his rather frank and alarming assessments of how the judiciary has been functioning.

One of the NBA’s recommendations is for the constitutional provision of parliamentary hearings for nominees to the Supreme Court be done away with. Asked to elaborate, Shakya starts off by pointing out that not a single person has been rejected by the parliamentary hearing committee till date. Instead, he says, the situation as it pertains now requires presumptive justices to go around kowtowing to political party bosses before the parliamentary hearings. Such trends compromise the independence of the judiciary, he says, since party leaders are likely to enter a quid pro quo arrangement in return for the nominee’s endorsement.

“What we witnessed in past parliamentary hearings is that justices are asked different questions to discourage them and then without any [credible] reason, they are approved by issuing a party whip,” says Shakya. “The constitution did not expect this kind of hearing. If there are provisions in the constitution that cannot reform the judiciary, it is better to remove them altogether.”

Another recommendation is on the tenure of justices. The committee has recommended raising the retirement age of all judges by two years. Hence, district and high court justices would retire at 65 and Supreme Court justices at 67. This, Shakya argues, is to reflect the growing longevity of Nepalis in general. When the current age limits were introduced, the average life expectancy of Nepalis was 54; it is now 71. Raising the age of retirement will allow the country to benefit from their “knowledge, experience and expertise”.

At the same time, though, the committee has also recommended that the minimum age for entry as Supreme Court justices be increased to 55. Says Shakya: “There is no need for anyone below 55 to be in a hurry to become a Supreme Court justice. If those with established competence, expertise and ability are inducted into the Supreme Court at 55, they will still have 12 years to prove themselves…The experience in the past has been that instead of mature and able judges with long experience, those who would not be able to withstand [political] pressure began to be appointed. The tradition has been for appointing people amenable to the parties in line to become the chief justice.”

Not that these are fact unknown to the public, but coming publicly from someone of Shakya’s stature makes his claims even more explosive. On the now-established convention of choosing the Supreme Court chief justice by seniority, he says that the NBA pushed for such an arrangement since otherwise those in the Constitutional Council would pick and choose the one they could easily manipulate, resulting in justices currying favour with party leaders. He even accuses members of the Constitutional Council, presumably, past and present, of never having allowed their choice to be guided by the imperative of improving the judicial sector.

Constitutional contentions

Readers may recall that during the discussion on the 2015 constitution, there was talk of setting up a constitutional court, following the precedent of scores of countries to settle issues pertaining mainly to the interpretation of the constitution. Following strong pushback from the judiciary, the framers of our constitution instead opted for a constitutional bench within the Supreme Court under the leadership of the chief justice. After much lobbying, the five-member constitutional bench was finally formed in 2021, consisting of the chief justice and the four senior-most of the Supreme Court justices, but has been pretty dysfunctional since.

The NBA committee’s recommendations also dwelt on this unfortunate situation, particularly when the federalism exercise has thrown up numerous disputes over questions of jurisdiction. Shakya says we are likely headed in the direction of a constitutional court even though there is no consensus on the matter in the NBA and current opinion appears to be veering towards a permanent constitutional bench. Providing the rationale for such a suggestion, Shakya says that the constitutional bench does not meet regularly. “The constitution has to be interpreted. The constitutional bench has to give time for that. Judges have to be engaged in deep study.”

One far-reaching recommendation affecting the general population is on the establishment of courts at the local level as envisaged by the constitution. Currently, judicial committees headed by deputy heads in municipalities and rural municipalities have been empowered to rule on many civil cases even though they are meant to seek resolution of conflicts through reconciliation only. Shakya says that the judicial committees are headed by politicians, and as such, their decisions can always be questioned. Hence, the need for local courts.

Overall, these changes are likely to improve the judiciary’s efficiency—should lawmakers have any appetite for them, that is. Of course, the proof is always in the pudding for we may have the best laws, but it is the manner in which they are interpreted and implemented that will matter the most.