Oped»
See you in court
JUL 05 -
The Maoists released their version of the constitution of Nepal on May 29, 2010, a day after the term of the Constituent Assembly (CA) expired. Being the largest party in the CA, it was also the largest party on the Committee on the Judiciary which submitted its report to the CA a few months earlier after concluding its deliberations. The Maoists also have experience in running their People’s Courts (Jana Adalat) in many rural areas of the country which were considered by many as kangaroo courts. Actually, this scribe had also been “summoned” to one of such kangaroo courts two years earlier in the heart of Kathmandu by the Maoists where he declined to go. It was two years after signing the CPA (Comprehensive Peace Agreement) when such courts were supposed to have been outlawed. Such courts are still reported to be in existence in some rural areas of the country.
The Maoist constitution envisages three tiers of the judiciary—Federal Supreme Court, Provincial High Court and Local (village, city or regional) Court. A separate court could be created under provincial laws at the local level to resolve disputes regarding family, untouchability and physical violence against women and children besides disputes regarding the traditional, cultural and cultural rights of such minorities as indigenous people, Madhesis and Muslims.
The Federal Supreme Court will inspect and supervise such judicial units as courts and other units of judicial administration. It will have jurisdiction over cases involving interpretation of federal laws in cases which could be considered a judicial review. The head of state will appoint the judges of the Federal Supreme Court on the recommendation of the Federal Parliamentary Judicial Committee. Those who get the approval of a majority of the members of parliament would be appointed to the post by the president. Their qualification will be graduate in law and having 15 years’ experience working as advocates or 12 years’ experience in the judicial service. A justice of the Supreme Court could be removed if impeached and convicted by two-thirds of the members of the federal parliament.
It is the jurisdiction of the Parliamentary Special Judicial Committee that has generated a great deal of controversy as it is not in accordance with the principle of separation of powers between the legislative and judicial branches of government. It will be chaired by the vice chairman of parliament and will include among its members the federal minister of law and justice and up to nine members from among the legislators elected on the basis of inclusivity and proportionality. It will have the right to interpret federal laws if there is a conflict between the existing law and the constitution. In other words, it will also have the power of judicial review.
It appears that the power of judicial review will be exercised not only by the Supreme Court but also by the Parliamentary Special Judicial Committee. As this committee is a parliamentary body having powers of judicial review, it contradicts the doctrine of separation of powers. In the US, hearings are held in the legislature (Congress) about the suitability of judicial nominees after they are proposed by the head of the executive (the president), but they are confirmed by a two-thirds majority of the Senate and not by a simple majority as proposed in the Maoist constitution.
The Federal Supreme Court could issue such writs as mandamus, certiorari or habeas corpus in cases where there is no alternate remedy. It also has original jurisdiction over disputes between provinces and constitutional bodies besides issues of national security. The Federal Supreme Court could also hear cases such public interest issues involving constitutional questions and if a Provincial High Court recommends that a certain case should be decided by the Federal Supreme Court.
Provincial High Courts will be working in all the federal states and will have jurisdiction over courts and judicial bodies in that state. Justices of the Provincial High Courts will be appointed by the provincial chief if the recommendation made by Special Judicial Committee of the state legislature is approved by a majority of the state legislature. Provincial judges could be removed from their posts if charges of impeachment against them are approved by two-thirds of the members of the state legislature. It could also issue different kinds of writs
There will also be local courts at the local level. The judges will be appointed or removed in a manner similar to the Federal Supreme Court or the Provincial High Court by the house of representatives at the local level.
The Maoist constitution also gives a time frame for deciding cases. The maximum period for deciding a case would be three years. A court will be required to pay compensation from its own funds for any loss caused by delays caused by it.
However, there are certain controversial measures regarding appointment of judges to the courts. The Maoist constitution requires that justices be appointed on the basis of proportional representation and inclusivity taking into account the census to ensure that women, indigenous groups, Madhesis, Dalits and Muslims will get their due share. Although there are reserved seats for scheduled castes (SC) and scheduled tribes (ST) in India’s Lok Sabha and state legislatures, there is no such reservation for them in the judiciary. Similarly, the first black judge in the US Supreme Court was appointed almost two centuries after the adoption of the US constitution. Actually, women in the US had been given the right to vote only a century earlier.
While the Maoist constitution seems to put a lot of emphasis on improving access to justice, it also seems to be obsessed with inclusivity without taking into account if it will adversely affect the quality of justice provided. On the other hand, some constitutional lawyers in Nepal such as Bhimarjun Acharya have objected to the decision of the CA Committee on Judicial Systems to give sole authority in appointing and dismissing judges, which is also done by the Maoists. He believes it was against the doctrine of separation of powers.
Actually, it is the power of judicial review of this committee that is most objectionable. An advocate in the Indian Supreme Court has written that the powers of the Judicial Committee contains the power to interpret the constitution which disrupts the separation of powers between the executive, the legislature and the judiciary. However, the president appoints the judges to the Supreme Court in the US, and this appointment has to be confirmed by a two-thirds majority in the Senate after holding a committee hearing. The president in Nepal could also appoint the justices to the Supreme Court who could be confirmed after being approved by a simple majority instead of a two-thirds majority of the members of parliament. This will be in accordance with the principle of separation of powers. However, the question remains: Could federal Nepal afford 12 high courts in each of the 12 federal states as proposed by the Maoists? Wouldn’t that be too expensive?
(The author is a former UNHCR representative in Pakistan)
Posted on: 2010-07-06 08:33
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