Justices and justiceDelayed justice is becoming the norm as the case-load of the Supreme Court continues to increase.
Separation of powers is at the heart of the democratic process. The three organs of the state are supposed to function with a lot of autonomy and maintain check and balance on one another. But that is not what we see in Nepal. Here, each organ is constantly trying to meddle in the jurisdiction of the other. Heavily politicised, they also struggle to maintain their autonomy. Of the three, the judiciary should have the most autonomy and be the farthest from politics. Instead it is being crippled by the connivance of major political parties. Due to the unhealthy competition among them to appoint their own in the top echelons of the judiciary, the Supreme Court has been without a third of its quota of 21 justices for two months. The Judicial Council, which appoints the apex court justices as well as the judges of other two tiers of courts, has been unable to sit, apparently as many of its members were (or are) currently on foreign trips. This is irresponsible when council rules clearly state that Supreme Court justices should be nominated at least a month before the retirements of incumbents.
As the saying goes, justice delayed is justice denied. But delayed justice is becoming the norm as the case-load of all tiers of courts, and especially the Supreme Court, continues to increase. Due to the paucity of justices, the top court has over 27,000 backlog cases and over 4,800 cases are older than five years. It could clear only 22 percent of cases from the previous fiscal year. The court’s constitutional bench—which is constitutionally mandated to undertake the all-important work of examining the constitutionality of any law and hear cases of disputes between the three tiers of government—has been very effective for the same reason. It is not just the Supreme Court that is short on justices though. The council has also yet to fill around half the vacant positions in high courts. Six of the seven high courts in Nepal have been operating without their chief judges for months. This raises a troubling question: is this evisceration of Nepali judiciary intentional, done with the intent of weakening it and keeping it under the thumb of the leaders of big political parties?
If so, this will have devastating consequences for Nepali democracy. Again, of the three state organs, our parliaments (both federal and provincial) are already notoriously dysfunctional. Top political leaders frequently give them a pass. The latest session of the federal parliament lapsed after endorsing only a single bit of legislation. The executive acts wantonly, often openly trampling on hallowed constitutional grounds, disbursing the annual budget on pork-barrel projects, and actively abetting corruption. If the judiciary is also compromised, the executive and the legislative will get a free reign to do pretty much as they please. It is sad that even members of the judiciary don’t seem all that keen on preserving the dignity of their institution. Nepal’s delayed and compromised justice process is a mockery of the rule of law, and something that should be of big concern to all those who believe in democratic values.