Constitutional concepts for the rule of law: a vision for the post-monarchy judiciary in Nepal.

• Published date: 22 March 2010
• Author: Pimentel, David
• Date: 22 March 2010

ABSTRACT

A new government has taken power in Nepal. Intent on replacing the monarchical Hindu state with a secular democracy, it has promised a new constitution. Although the Nepali government is currently operating under an Interim Constitution, it remains to be seen what the post-monarchy judiciary will look like. Those involved in the drafting should pay careful attention to how specific provisions for court governance will impact both institutional and decisional judicial independence. The Interim Constitution calls for a judicial council but not a sufficiently independent one. The Interim Constitution also allows broad exercise of emergency powers, depriving the courts of jurisdiction over the legality or constitutionality of such exercises--a particularly disturbing flaw given the history of abuse of emergency powers in Nepal. These, along with an array of other concerns that otherwise threaten to undermine the independence and effectiveness of the third branch of government in Nepal, can and should be corrected in the new constitution. This Article sets forth those concerns and suggests solutions for each. Nepal's prospects for the rule of law may depend on how well the new constitution's drafters follow this punch-list of issues and principles as they establish the constitutional framework for the new Nepali judiciary.

TABLE OF CONTENTS
                I. INTRODUCTION
                II. CONSTITUTIONAL HISTORY IN NEPAL
                 A. Nepal Constitution Act of 1948
                 B. Interim Constitution of 1951
                 C. Royal Constitution of 1959
                 D. Panchayat Constitution of 1962
                 E. Constitution of 1990
                 F. Interim Constitution of 2007
                 G. Status of the New Constitution
                III. CURRENT STATE OF THE JUDICIARY IN NEPAL
                IV. JUDICIAL ELECTIONS--A FLAWED CONCEPT
                V. CONSTITUTIONAL SAFEGUARDS FOR JUDICIAL INDEPENDENCE
                 BOTH INSTITUTIONAL AND DECISIONAL
                 A. Institutional Judicial Independence--The Judicial Council
                 1. Present Provisions for the Judicial Council
                 2. Role of the Judicial Council--Appointment
                 3. Role of the Judicial Council--Discipline and Removal
                 4. Role of the Judicial Council--Other Responsibilities
                 5. Strengthening the Judicial Council--Clear Delegation
                 of Power
                 6. Strengthening the Judicial Council--Broadened and
                 Diversified Membership
                 7. Judges on the Council
                 8. Selection of Council Members by Their Fellow Judges
                 9. Representation of Different Levels o f Judges
                 10. Geographic Representation on the Judicial Council
                 11. Non-judge Membership on the Judicial Council-Lawyers
                 12. Non-judge Membership on the Judicial Council--The
                 Legal Academy
                 13. Non-judge Membership on the Judicial Council--Lay
                 Persons
                 14. Judicial Council Best Practices--Summary
                 B. Institutional Judicial Independence--Judiciary Budgets
                 C. Institutional Judicial Independence--Emergency Powers
                 1. Suggested Constitutional Provisions for Emergency
                 Power--Right to Challenge the Exercise of Such
                 Power before the Supreme Court
                 2. Amendments as to Specific Rights
                 D. Institutional Judicial Independence--Annual Reports
                 E. Decisional Judicial Independence--Life Tenure
                 F. Decisional Judicial Independence--Judicial Compensation
                 1. No Diminution of Salary
                 2. Adequate Salaries
                 G. Decisional Judicial Independence--Removal
                 H. Decisional Judicial Independence--Judicial Immunity
                VI. ACCESS TO JUSTICE: LOWER COURTS AND REGIONAL
                 STRUCTURE
                VII. ETHICS AND CORRUPTION IN THE COURTS
                 A. Vetting the Current Judges
                 B. Establishing Accountability Mechanisms
                VIII. CONCLUSION
                

I. INTRODUCTION

Nepal is in a state of transition. (1) A new government has taken power, intent on replacing the monarchical Hindu state with a secular democracy, (2) and has promised a new constitution to effect these changes. (3) What follows herein is a brief summary of the historical context for the initiative, particularly as it applies to the Nepali judiciary, and then an open letter to the Constitutional Drafting Committee ("CDC") with general advice for judicial reform in Nepal. (4)

Against the backdrop of Nepal's political and constitutional history, including the content of the present Interim Constitution, there is particular concern for the independence of the Nepali judiciary. While the Maoists have called for a judiciary more "accountable to the people," the related proposal for judicial elections is deeply flawed and a poor avenue toward judicial independence. (5) Instead, the constitution must include a system of judicial governance (including judicial selection, promotion, discipline, and administration) that is distanced from the political forces that would otherwise corrupt it: a system founded upon an independent judicial council. Institutional independence will also require some new provisions dealing with judiciary budgets, emergency powers, and annual reporting from the third branch of government. Ensuring decisional independence--the freedom individual judges have in rendering their judgments--will require other constitutional provisions dealing with life tenure, compensation, discipline and removal, and judicial immunity. Access to justice requires the retention of small courts in rural and remote areas, particularly given the efficient and responsive dispute resolution done there. These can be administered on a regional basis. Finally, the new system will require a thorough vetting of judges to root out existing corruption, as well as an effective accountability mechanism for policing the integrity of the system in the future.

There is great potential for Nepal's future with respect to the rule of law, but establishing the proper constitutional framework for the Nepali judiciary will be a necessary first step in realizing that potential. The recommendations herein are focused on creating that framework and maximizing prospects for success in this endeavor.

II. CONSTITUTIONAL HISTORY IN NEPAL

Nepali governance has a rich and complex history starting with the unification of Nepal in the mid-eighteenth century under Gurkha King Prithvi Narayan Shah. (6) By the mid-nineteenth century, the Ranas had seized power in the role of Prime Minister, a title which was passed down in the Rana family line. The Rana regime was authoritarian, with the Bharadari Sabha (or Assembly of Lords) functioning as no more than a consultative body that effectively rubber-stamped the rule of the Rana. (7)

A. Nepal Constitution Act of 1948

The first law resembling a constitution in Nepal was the Government of Nepal Constitution Act of 1948, commissioned by liberal Prime Minister Padma Shamsher Rana. (8) However, the result was a constitution in form more than in substance. It created a bicameral legislature, with the entire membership of one house and a majority of the other appointed by the Prime Minister, and with the Prime Minister retaining power to veto any legislatively adopted measure. (9) This token gesture to constitutionalism lasted only a few months until anti-Rana rebels joined the monarchy to overthrow the Rana system. (10)

B. Interim Constitution of 1951

A new Interim Constitution was adopted in 1951, reasserting the king's executive, legislative, and judicial powers. (11) While this constitution created a putative legislative body, the Constituent Assembly's power was purely advisory, with the king retaining ultimate power. (12) Pressure for more democratic and representative government prompted King Mahendra to grant a new constitution in 1959. (13)

C. Royal Constitution of 1959

The Royal Constitution of 1959 created a multi-party parliamentary system modeled on those of Britain and India, but which retained enormous power in the king, including broad emergency powers to suspend both houses of parliament and the constitution itself. (14) When these powers were invoked by King Mahendra after party elections in 1960 to dissolve the government, the pre-1959 constitutional system was revived. (15)

D. Panchayat Constitution of 1962

King Mahendra issued a new constitution in 1962, abolishing all political parties, and drawing on the ancient panchayat system for the structure of local and regional government. (16) While recognizing local councils, or panchayat, the 1962 Panchayat Constitution contained even stronger assertions of royal power than the previous constitutions. (17) Once again, the king retained unilateral power to suspend the constitution during emergencies, as well as the power to amend the constitution. (18) This amendment power was invoked periodically over the years in response to agitation for a more democratic government, which reached a head in 1990. (19)

E. Constitution of 1990

Pro-democracy protests, from both the right and the left, ultimately prompted the monarchy to make concessions in a new constitution in 1990. (20) This constitution brought back a multi-party parliamentary system, and for the first time, granted elected officials genuine power independent of the king. (21) However, the 1990 Constitution left the door open to significant assertions of royal authority, including the invocation of emergency powers. (22)

By 1995, Maoist rebels were organizing in rural areas, protesting the monarchy, and calling for a "people's republic." (23) The insurrection became increasingly violent over the next ten years, contributing to political instability in the elected government. In 2001, King Gyanendra declared a state of emergency and sent the army to fight the Maoist insurgency. (24) Attempts to negotiate a peace failed in 2003, and ultimately, in 2005 the King invoked emergency power and assumed full control of the government. (25)

F. Interim Constitution of 2007

In April 2006, King Gyanendra, under intense political pressure, reinstated parliament, and the following month, the parliament voted unanimously to curtail royal power. (26) Shortly thereafter, a peace agreement was reached with the Maoists, and they were, in turn, invited to participate in an interim government. (27) The new government immediately moved to replace the 1990 Constitution. Plans were announced to draft and...