Judicial System under Federalism should be Independent
“Justice must be served timely, efficiently and economically, within the social boundaries of accepting the norms and values, making people feel the presence of legality. If not then its effectiveness has no use.” Contemplating the sense of providing an equal and safe surrounding, and making an individual feel safe sound and secured is its ultimate goal which is highlighted internationally. Justice for all is the voice of today which safeguards the rights of any individual marking him with in the criteria of what’s legal and what’s not, defining legality at its best. Nepal’s judicial system has been controversial in many ways from its past practices of being influenced by the autocratic regime to the manipulation and corruption of the democratic system. The judicial system is still struggling to establish its honor and credibility among people. More or less with the changing time judicial system of Nepal is also trying to change and adapt to the norms and values of the scenario. After, April 2008, when Nepal was declared as a Federal Democratic Republic, abolishing the monarchy system . New problems have confronted the law makers and legislative body about how to define the new constitution and how to adapt the legal system within the new constitution.
Efforts are going on to meet the future challenges and to secure the judicial independence in the new constitution making process. It may seem as a smaller issue but justifying it to meet the needs and adapting the existing infrastructure, human resources and other financial management issues seems to be a huge challenge. Contemplating the past practices the new judicial system demands to confine itself within the periphery of inclusiveness, accessibility and accountability, which is the voice of today. But with the political deadlock and uncertainty everything lies traumatize where the nation move in the vagueness of a black hole.
Looking back to past practices, Nepal practiced unitary method in its judicial system , where there is a provision of three tiers of court system including the Supreme Court, the Court of Appeal and the District Courts. Apart from that the Criminal and Civil Court are more or less same in operation except some of their legal mechanism. The current unitary method of the court system practices a hierarchy where the Supreme Court is the foremost and then the Court of Appeal and the District Court and so on.
Talking more about the hierarchy of court system, people are facing problems due to the current system where the decision are not timely done and can be challenged where even a small case would take years for justice. Specially in the lower courts things can be easily manipulated and people have to wait for decades just for hearing where the judges rules out for the next date and poor and unreachable have no chance of justice. There is no mechanism to counter such irregularities.
Yes, at times there have been different commissions and mechanisms set up to tap such behaviors but as soon as the government changes the reports of those commission and mechanism are limited within the drawers and cabinets.
“Judicial system is a dynamic field that safeguards and facilitates people in defining, processing and conditioning their actions within the periphery of law. It’s the base of defining what’s legal and what’s not? Apart from its legality issue, judicial system has always been independent in every possible way around the world. But the confusion of it being a part of the system invites controversies that certainly give stance for corruption and irregularities, which need to be cleared and subtracted,” said Ramesh pant, a law practitioner.
Looking at Nepal’s history of judicial system, it has seen innumerable changes from years which have faced rise and fall of regimes, and revolutions where more or less in most of the times it was influenced by bureaucracy and leadership. The aspect of judicial system being separated and being efficient was always a question where the country faced challenges in its government practices and leader’s visions but it remained the same transcending the orthodox system and resisting changes. Unfortunately, adapting the best, Nepal’s judiciary has failed to deliver timely and equitable justice, and have been complimented with controversy of appoint, promotion, or dismissal of judges in an unfair and biased manner.
Practically looking at the trends the Lower courts are viewed as slow and corrupt where cases in most circumstances, take decades to be resolved. Currently when Nepal is moving toward federalism, a big question obstruct us, what about legal system? Should we flow the traditional old unitary system or should we adapt the new federal state level judicial system. Expert and lawmakers are in a dilemma of what should be done. Looking at the practices of unitary method in Nepal it has been timely corrupted and has significantly torn out of its credibility, but the mechanism of control and the network of channelization or authority is phenomenal. Now getting to the federal state practice, there are a lot of complexity with defining Nepal within the criteria of federal state as if individual federal court system are adapted in each state then it would have its own mechanism and legal boundaries which can be defined according to the limitation of gender, language, and even resources available. Specifically in a small country like ours with such diversity and multi lingual status it might result in a chaos and further obliterate the situation. The problems that might be faced with in the federal system are categorized into following points:
1. Regional Language practice
2. Rules and Regulation of individual province
3. Authentication and identification of citizen
4. Legal periphery and counter mechanism
The legal system today is stuck in transition of characterizing and defining the limitation of the new court system and its periphery. The orthodox system that transcended is being significantly challenged to redefine its new limitation highlighting three new factors of cost, credibility and time. The previous system which was more controversial and slow is currently looking for a new face off with an effective system where legal practitioners are also highlighting their rights and possibilities. The proposed new judicial system needs to be adapted accordingly realizing the past mistake, for such the dual stick method is highly recommended. Most of the experts are voicing for the adaptation of dual stick method represents the combination of the unitary and as well as the federal state practice. Since, the judicial system is a sensitive issue which needs to be independent and accessible. It needs to be defined within a proper system where the dual stick method has greater efficiency. As within the dual sick method, the Unitary method defines a proper channelized monitoring system prioritizing control and support of the central body in every aspect of resources where as the federal system highlights its easy accessibility and easy operation where time money and resources can be effectively and efficiently managed. The combination of the both certainly results in a better counter mechanism to deal with the issue and controversies. Further for the proper control and management the central authoritative committee can develop different mechanism to counter its state level court system in balancing their effectiveness. This way each court will be independent of its statutory existence where proper balancing can be done in a more systematic way. Regarding the issue of licensing and other purpose the province and the central body should workout a mechanism to adapt accordingly to the timely condition solution.
Thus, Nepal is still struggling to have a political collaboration trying to manage an effective judicial system, it has been controversial at times highlighting the weakness of being manipulated and dragged in issues of corruption, transparency and accessibility which needs to be overcome with proper vision. The active involvement of political interference in appointment of judge issue and the long lasting power play game has questioned the credibility of the judicial system in Nepal where people search for a radical change. Highlighting the issue of justice to all, normal public are burdened with financial, mentally and physically outcry where the new system should address credibility, viability and flexibility. Though a political deadlock haunts the nation but the issue of an effective and efficient judicial system is the need and voice of people where it also plays an important role in giving shape to the coming future.
By Shreedeep Rayamajhi
