Nepal Monitor: The National Online Journal: <br /> Print This
Nepal Monitor: The National Online Journal

Formal Justice Too Costly in Nepal

Formal justice is too costly in Nepal but the changed political context brings golden opportunity for reform, writes KRISHNA PRASAD BHANDARI, a senior advocate at the Supreme Court


Nepal’s judiciary is perceived to be one of the most corruption-afflicted sectors in the country (see note 1). Although corruption affects every sector of governance, corruption in the judiciary poses an immediate threat to ordinary people (see note 2) because it directly affects their lives, property and liberty. It is a major hindrance in securing the rule of law.

Under the 1990 constitution the Nepalese judiciary is an independent organ of the state with powers to review executive and legislative decisions. It has not, however, been able to initiate serious measures to control corruption, or to take action against allegedly corrupt judges and court officials (see note 3).

Supreme Court finds its voice again
In the past 15 years, a 10-year insurrection by Maoist rebels, the self-interested activities of political parties and King Gyanendra’s political ambitions all conspired to produce an instability that encouraged impunity and corruption.

Though constitutional and legal provisions clearly prohibit corruption, poor enforcement, lack of political will and the King’s seizure of power on 1 February 2005 helped the corrupt to go unpunished. King Gyanendra’s dissolution of Parliament and the creation of the Royal Commission for Corruption Control (RCCC) breached the authority of the constitutionally appointed anti-graft body, the Commission for the Investigation of Abuse of Authority (CIAA), paralyzing its work and leaving the anti-corruption movement in limbo.

Just over a year later, on 13 February 2006, the Supreme Court ruled the RCCC unconstitutional and ordered its immediate scrapping. This paved the way for the release of ousted prime minister Sher Bahadur Deuba, who had been detained on corruption charges. During April weeks of popular protests forced the monarch to restore parliament and eventually surrender his autocratic power.

The Supreme Court’s decision has been portrayed as a step towards ensuring the reality of an independent judiciary in Nepal, though in the previous year it was widely accused of bending to demands for the appointment of judges with pro-royal views (see note 4). The active Nepal Bar Association frequently castigated the court for its supine verdicts during the period of direct rule and it was only latterly that it passed positive judgments on the many habeas corpus petitions presented on behalf of activists detained by the Royal Nepalese Army and the police.

Judges protect their colleagues and their pensions
Under the 1990 constitution, parliament can impeach and remove a Supreme Court justice if found to be engaged in corruption, but this power has not been exercised for 15 years. The constitution requires a two-thirds majority for impeachment to proceed, which means it is a difficult provision to implement in a divided assembly – and impossible when parliament is dissolved. The otherwise independent anticorruption agency, the CIAA, has no authority to take action against judges. Hence, senior judges have enjoyed immunity due to the rigid provisions of the constitution.

In the case of irregularities by judges in the appellate and district courts, the judicial council of the Supreme Court can take all necessary actions. Headed by the Chief Justice, it is composed of the two most senior Supreme Court judges, the Minister of Law and a representative of the King. Despite having the authority, however, the judicial council has failed to act decisively against many lower court judges, thereby providing them with protection from exposure. Many complaints against lower court judges are still pending at the judicial council.

*** ***
Key Facts
Legal system: Civil law, inquisitorial, plural
Judges per 100,000 people: 1.0 (According to the Registrar of the Supreme Court, 2006)
Judge’s salary at start of career: US $3,300 (According to the Registrar of the Supreme Court, 2006)
Supreme Court judge’s salary: US $4,800 (According to the Registrar of the Supreme Court, 2006)
GNI per capita: US $270 (World Bank Development Indicators, 2005)
Annual budget of judiciary: US $13.0 million (According to the Registrar of the Supreme Court, 2006)
Total annual budget: US $2.0 billion (Ministry of Finance)
Percentage of annual budget: 0.7
Are all court decisions open to appeal up to the highest level? Yes
Institution in charge of disciplinary and administrative oversight: Not independent
Are all rulings publicized? No
Code of conduct for judges:? Yes

*** ***


Two Supreme Court judges, Krishna Kumar Verma and Bali Ram Kumar, did step down in 2004 after media criticism following their acquittal of an international drug smuggler, Gordon William Robinson, who was on Interpol’s most-wanted list. Robinson was arrested at Katmandu airport with 2.3 kg of heroin in his baggage. Though sentenced to 17 years in prison and a Rs.1.7 million (US $24,125) fine, the Supreme Court acquitted him on grounds of insufficient evidence (see note 5). Again, the judicial council failed to investigate or prosecute, allowing the judges quietly to withdraw into retirement.

Former chief justice Biswa Nath Upadhayay has publicly said that irregularities mostly occur within a nexus of corrupt judges and lawyers (see note 6). Upadhayay, who chaired the 1990 constitution drafting commission, accused the judicial council of failing to stem corruption in the judiciary, and appointing and promoting subordinate judges according to a system of ‘quotas’ (see note 7).

This forms part of a long tradition of politicizing the judiciary. After the restoration of democracy in 1990, most new appointees to judgeships had close personal links with the ruling Nepali Congress party and its leaders, and the same occurred when the Communist Party of Nepal and Rastriya Prajatantra Party shared power.

During King Gyanendra’s direct rule, royalist lawyers were appointed as judges and the King promoted his then attorney general, Pawan Kumar Ojha, to the Supreme Court in the face of strong opposition from the Nepal Bar Association.

Honest legal practitioners with no links to partisan politics have tended to be sidelined in the appointment process.

Formal justice is too costly for most
The courts are riddled with irregularities in which court employees are the main actors, often in collusion with lawyers. A 2002 TI survey on corruption found that many Nepalis believe court officials and lawyers often collude to frustrate formal judicial processes (see note 8). The well-respected former prime minister Krishna Prasad Bhattarai, who initiated work on the 1990 constitution, once said on national television that officials who receive a meager salary are compelled to look for alternatives to compensate their costs. This official tolerance of ex gratia fees for services is reflected by a public that expects to pay them if required (see note 9).

Bribery seems more prevalent in criminal cases, notably in murder, theft, and drug dealing and corruption charges. The lower courts are the most corruption-prone (see note 10). A 2003 TI study measuring corruption in the Rupandehi district, for example, found that court staff, lawyers, judges and defendants’ intermediaries all work towards the release of defendants through negotiations on the appropriate level of payment (see note 11). The Nepal Bar Association, civil society and the media have strongly criticized court decisions to acquit criminals in cases like the Robinson affair. Political considerations, inconsistency in interpreting the constitution and laws, conservative attitudes in the handling of public interest litigation and delayed delivery of decisions promote corruption. Critics call the justice system inefficient, biased and expensive (see note 12).

The public’s perception of the preponderance of graft has caused it to lose faith in the official justice system. Partly as a consequence, poorer citizens have taken their litigation to the Maoist courts. These tribunals, which the government scorns as ‘kangaroo’ courts, reportedly deliver prompt justice on petty cases, ranging from crimes to the theft of livestock, without the involvement of qualified lawyers. ‘In a criminal justice system that is brazenly pro-rich, for the poor chasing justice is like chasing a mirage,’ said a female schoolteacher in a rebel-held village (see note 13).

The courts, which gained a reputation for meting out rough justice for violent crimes, including rape, were also effective in controlling polygamy. The operation of Maoist courts was suspended in July 2006 as reconciliation talks got underway with the new government.

Golden opportunity for reform
The proposed draft of the Nepalese interim constitution in 2006 has for the first time adopted plans to appoint district court judges after examinations. Higher court judges are to be appointed either directly or by promoting lower court judges. These measures are expected to limit favoritism in the appointment process, and build competence and credibility in the judiciary.

Also proposed is the appointment of a senior advocate as a member of the judicial council on the recommendation of the Nepal Bar Association. It is hoped that this will encourage lawyers to act as civil society watchdogs within the judiciary. In a bid to restore its image, the Supreme Court recently launched a series of programs targeted at encouraging out-of-court settlements, capacity building for judges and accelerating case processing, with assistance from UNDP and USAID. But the real need of the hour is a judicial integrity program to raise the reputation of the justice sector by improving its skills and ethics base. Parliament and the new government must quickly establish a high-level independent body with authority to investigate arrest and seize the property of any judge found to have been engaged in corruption. This could begin with a reorganization of the judicial council that would extend its powers and competences.

The seven-party alliance, which still enjoys the support of the People’s Movement, must show sufficient strength to promulgate new policies that truly curb corruption and irregularities in the judiciary. There is no doubt that the existing justice system has failed, but the public still desires an independent, efficient and fair judiciary.


*** *** ***
Krishna Prasad Bhandari is a senior advocate, Supreme Court of Nepal, Kathmandu. Courtesy Transparency International's Global Corruption Report 2007 pages 236 to 239. Originally entitled: "Opportunity knocks for Nepal’s flawed judiciary."


Notes
1 Baburam Dhakal, Adalatma Bhastachar (Corruption in Courts), self-published (2006); and TI South Asia Household Survey on Corruption (2002).
2 ‘Corruption Control Recommendation Committee Report’, 1999, submitted to the government of Nepal.
3 Ananta Raj Luitel, ‘Judges’ Appointment Process and Controversies’, in Good Governance bulletin of Research and Media Centre against Corruption (ReMAC) Nepal, February–March 2006.
4 Asian Human Rights Commission, press release, 15 February 2006.
5 See article from nepalnews.com, 4 January 2005, available at: www.nepalnews.com.np/contents/nepaliweekly/nispakshya/2005/jan/jan04/thisweek.htm
6 Space Time (Nepal), 13 December 2003.
7 Interview in Golden Jubilee Souvenir of Nepal Bar Association 2006.
8 TI Household Survey on Corruption (2002) op. cit.
9 Nepal Law Society, ‘The Judiciary in Nepal: A National Survey of Public Opinion’, November 2002.
10 Corruption Control Recommendation Committee Report (1999) op. cit.
11 TI-Nepal ‘Corruption Measurement In Rupandehi District’ (2003).
12 TI-Nepal, ‘Nepal: National Integrity System’ (2004).
13 Inter Press Service (Italy) 29 July 2004, available at southasia.oneworld.net/article/view/90875/1/


Posted by Editor on May 25, 2007 2:55 PM