The controversy over the composition of the Supreme Court’s Constitutional Bench has made a mockery of the judicial process. It has also raised fears that the hallowed democratic principle of separation of powers has been trampled upon. First, by ignoring the criteria of seniority, Chief Justice Cholendra Shumsher Rana made a blunder while choosing the five-person bench, the all-important authority to interpret the national charter.
The plaintiff lawyers arguing against Prime Minister KP Oli’s decision to dissolve the House and call for a fresh election raised a fuss. Chief Justice Rana relented and reconstituted the bench on a seniority basis. Now, it was the turn of the lawyers defending the prime minister to object, as they accused the two new judges on the bench of being biased against the Oli government. Weeks of precious time that could have been spent debating an urgent issue of national interest were wasted.
Compared to their low faith in the executive or the legislative, the public faith in the judiciary is much higher. Yet this trust is eroding. Judicial appointments are being made mostly along party lines. Senior judges often court controversy. Political leaders in positions of power often speak openly on sub judice cases—and get away with it. And now, there is the controversy over the judges’ impartiality as they sit to interpret the constitution.
How can the public trust their interpretation? Ideally, we should have judges such as former Chief Justice Sushila Karki who simply refused to entertain any political meddling in the judiciary. She maintained a safe distance from political actors and interest groups. Her character was so clean that those who wanted to influence her to rule a certain way did not even bother to try. As a result, the decisions of her court were mostly beyond reproach. And that is how it should be.
As the Constitutional Bench presides over this important case, the judges have a wonderful opportunity to restore public faith in the judiciary. For this, it is vital that the judges not be seen as being swayed by pressure groups and strictly rely on their conscience to interpret the constitution. People are waiting with bated breath.