Structural reforms in the constitution

The constitution-making process is a crucial opportunity to restructure the governance system. It’s been nearly a decade since the promulgation of Nepal’s Constitution, and throughout this exercise, the three branches of government— executive, legislative and judiciary—have faced controversy and criticism. Future constitutional practice in Nepal will likely be more complex and demanding as it appears that the judiciary, which is required by the constitution to act in accordance with the constitution by judicially reviewing the unlawful and unconstitutional acts committed by other state organs, is losing its capacity to carry out its duties.

It is undeniable that the judiciary will play a significant role in strengthening, maturing, and advancing the constitutional jurisprudence and constitution through development, as our constitution, which was enacted with the rule of law and constitutional supremacy, tries to amend the governance system and constitutional practice through mainstream consensus while remain within the limits of the constitution.

The constitution is said to be a reflection of the society’s consciousness. The necessity of developing, reforming, and amending the constitution becomes apparent when there is a shift in societal consciousness. Constitutional reforms are also necessary to end the flaws or skewed practices observed during the constitutional practice. Only issues concerning the judiciary or the constitution have been addressed in this article.

Structural reform matters 

The preamble of the Constitution of Nepal envisions an independent, impartial, and competent judiciary, while Article 126 ensures that Nepal’s justice-related rights will be exercised only by courts and judicial bodies in accordance with the legitimate principles of the Constitution, law, and justice. Courts and judicial bodies are the only entities that can exercise justice-related rights.

The way for maintaining the judiciary’s independence and competence is that, because the judiciary has the right to judicial review of executive and legislative acts, it is recognized that it should remain independent and competent under all circumstances. Because the executive and legislature primarily challenge the judiciary’s independence, the standards of independence should be determined by the constitution itself, and our constitution has adopted the necessary constitutional provisions.

Constitutional Council

The Constitutional Council, chaired by the Prime Minister, advises appointments for the Chief Justice and other constitutional organs. This sacred objective has been nearly destroyed by constitutional practice so far, raising issues about the fundamental concept of an independent judiciary, and there is an urgent need for reassessment. The following are the grounds for the necessity to change the current structure of the Constitutional Council:

It has been demonstrated in practice that when the court makes judgments alongside the government and the legislative, it is impossible to achieve the constitutional goal of an independent, competent, and effective judiciary. The judiciary’s ability to review decisions made by other branches of government has become apparent.

The principle of a transparent and independent trial, as well as natural justice, have been violated because a bench, including the Chief Justice, is required to evaluate the legitimacy of the decision and the judicial procedure. 

On the other hand, due to Chief Justices’ unwillingness to face such issues or their desire to step down, or for various concealed factors, such disagreements could not be settled for a long time, raising concerns about the judiciary’s efficiency.

It has been revealed that the Chief Justice’s position in the Constitutional Council forces the Executive and Legislative branches, as well as the Judiciary, to exercise undue influence or, in some instances, make transactions with those organs, agencies or persons.

The judiciary, like other organs of the state, will be discredited. If this constitutional clause is not addressed promptly, public trust in the court will decline further, and democracy will undoubtedly suffer. As a result, it appears unavoidable that the Constitution be altered to separate the Chief Justice from the Constitutional Council.

Judicial Council

It is necessary to modify the Judicial Council's current structure as well because it is not capable of fulfilling its constitutional mandate, which calls for it to recommend judges for appointment to all levels of government and to take disciplinary action against judges of courts other than the Supreme Court. The reasons behind this can be stated as follows:

• The recommendation process for the appointment of judges is non-transparent, the merit system cannot be adopted, the judicial council is influenced by political pressure, complaints against judges are not processed on time, all four areas of the appointment of judges frequently express dissatisfaction with the appointment, and the judicial council's decisions and actions are not implemented. Dissatisfactions are expressed during the appointment, claiming that relatives, nepotism, favors, and temptations have usurped their position.
• This framework appears to be failing to meet constitutional objectives because standards are sometimes set in the appointment of judges, sometimes they are postponed, and rules are changed based on the individual.
• The Judicial Council's performance is considered low because it is not accountable to Parliament, the Judiciary, or the Constitution. As a result, the constitution must be reviewed by changing the structure of the judicial council and appointing a majority of judicial leadership, recommending the appointment of judges from the collegium system in which Supreme Court judges participate, as is the case in India, or by exploring alternative approaches.

Parliament hearing

Parliamentary hearings on the proceedings of the Chief Justice and Supreme Court judges have had a negative impact on the notion and practice of an independent judiciary, as well as jurisdiction. 

The parliamentary hearing is a political process that cannot be completed without the involvement of the political level. As political involvement must be demonstrated, those who are recommended to pass the parliamentary hearing stage expect the backing of the political sector, and the political sector has different expectations of the recommended individual. 

The course of parliamentary hearings appears to be in threat of being a negotiation point between the political and judicial branches. This has eroded the core notion of an independent judiciary. 

Thus, in the case of the Chief Justice and Supreme Court judges, it is appropriate to review the current constitutional provision regarding parliamentary hearings and implement the public hearing method process recommended by the judicial council that makes the appointment recommendation. 

High Court

According to the phrases and terms used in Articles 133 and 144 of the Constitution of Nepal, the High Court, in addition to determining the validity of laws, has the same authority to exercise extraordinary jurisdiction as the Supreme Court. However, even now, it appears that the high courts are unable to completely exercise their jurisdiction.

In some circumstances, the High Court’s appear to be simple continuations of the earlier Appellate Courts. The appointment of judges, qualifications, as well as the study and skill of legal practitioners, all contribute to this.

But basically, from the standpoint of expanding extraordinary jurisdiction to the High Court like the Supreme Court, it has become unavoidable to review the constitution and provide the High Court with the power.  

This reduces the Supreme Court's workload while simultaneously simplifying and speeding up the administration of justice. Likewise, by establishing the High Courts as Supreme Courts or Courts of Record, such as the High Courts of India or other federal countries, it should be ensured that the judicial principles advanced by the High Courts are binding on the District Courts or other judicial bodies subordinate to them. 

Impeachment process

The Constitution’s Article 101(2) states that the House of Representatives may impeach the Chief Justice of the Supreme Court and other judges with a two-thirds vote. However, in certain instances, this power has been misused and the House has been unable to demonstrate its impartiality in other situations.

In India, six judges, including the Chief Justice, have faced impeachment, but to this day, they have not been impeached. According to Article 124(4) of the Constitution of India, if the Chief Justice or a judge of the Supreme Court is impeached by a two-thirds majority of both the Federal Houses on the grounds of misconduct and incompetence, the judges of the Supreme Court shall not be dismissed from office except by the President.

On the other hand, it has become necessary to review the current constitutional provisions and create a constitutional arrangement to swiftly resolve the related provisions enrolled against the Chief Justice and judges, as the House of Representatives' impeachment proposal has been delayed for a long time due to political wrangling.

In conclusion, the judiciary’s structural reform is now essential. The aforementioned issues, as well as any other subjects, can be the focus of structural reforms.