Top secretThe criteria for the appointment of judges as given in the constitution and the Judicial Council Act, 2016 seem like good initiatives, but they are found to be vague and inadequate.
Judicial independence and competency majorly depend on institutional independence too, which is basically secured through an appropriate appointment mechanism of judges and the quality of judgements delivered by competent judges. A successful judiciary is one whose members are appointed through a rigorous process that assesses the candidates’ legal qualifications and reliability. The Judicial Council consists of a committee that recommends names for appointment as judges and conducts other administrative tasks.
The criteria for the appointment of judges as given in the constitution and the Judicial Council Act, 2016 seem like good initiatives, but they are found to be vague and inadequate. And the incorporated provisions are not implemented. The current appointment process is secretive; the Judicial Council, which is also the appointment committee, does not provide details of what appropriate procedures were applied during the selection. The institution and committee do not reveal on what basis eligibility was considered. They do not say how many total candidates were recommended and what was the evidence of their work record. Queries about what were the qualifications of the recommended candidates who were appointed, and who were rejected, are not made public. It is also not clear whether the Judicial Council sought detailed information about the eligibility of the candidates for appointment from several institutions such as the Supreme Court, Judicial Service Commission, Ministry of Law, Attorney General and Nepal Bar Council.
Clearly, our judicial appointment system lacks transparency, accountability and neutrality, and this approach has been highly subjective or prejudiced. Thus it shows that the recent system of appointment has failed, and our judicial appointments are perceived to be one of the best kept secrets of the country. We need to openly argue and oppose such arbitrary secret appointments. We also need to figure out the best alternate solutions to ensure that democratic practices are followed and the rule of law is maintained. Criticism of biasness in judicial appointments is not new. The judiciary is the only organ of the state where appointments are made in secrecy. Not all appointed judges are unqualified; however, as long as the appointment of judges remains murky, the judiciary remains fragile in the eyes of the public.
The recent appointment of High Court judges and Supreme Court justices has become a matter of controversy because nothing is officially confirmed about the qualifications of the selected candidates, whether they fulfilled the appointment criteria and what their positions were in the merit ranking. This has led to a major debate in the legal fraternity. The selection of candidates with no major legal procedures, accomplishments and open alignments is entirely unknown.
Owing to the opaque nature of the appointments, rightly, there are speculations about nepotism, favouritism, political considerations, personal interests and quid pro quo methods at play. If true, such practices are sure to plague our judiciary with incompetence and inefficiency.
Appointments have been questionable, where sons, daughters, relatives and colleagues of former judges, chief justices and advocates are recommended and selected without any responsiveness, transparency and competence. Thus the judiciary seems to be an institution where institutional and public interest has been sacrificed at the altar of personal pursuits. This practice cannot continue, and will ultimately lead to a demand for greater participation, responsiveness, inclusion, equity, accountability and transparency for judicial competency and independency—the basic elements of good governance.
The best alternative to bring substantive reforms in the present system of secrecy in judicial appointments is to propose and initiate a noble mechanism or guidelines and procedures that require all information to be made public. More than anything, the recommended candidates should indulge in introspection and weigh their capabilities for delivering real and fair justice. The third branch will stand ineffective until the day it becomes independent and accountable.
Our justice is broken. But it was not meant to be so. This trend of politicisation of the judiciary needs to be reversed. Reforming our judiciary first and foremost has to start with establishing a system of appointing competent judges on the basic of their merit. The process should be transparent, too. What’s more, mentioning sub-categorisation of constitutional eligibility and qualification for the recommendation and appointment of judges is a vital requirement that would automatically enhance judicial standards, which will guarantee independence of judicial system.
Bhandari is a criminal defence attorney at Saman Legal Service.